UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


A  TREATISE  ON 


PLEADING  ANDPRACTICE 


IN  THE  COURTS  OF  RECORD  OF 


NEW  YORK 


INCLUDING   PLEADING   AND   PRACTICE   IN   ACTIONS   GENERALLY 
AND   IN    SPECIAL   ACTIONS   AND   PROCEEDINGS 
AND   APPELLATE   PROCEDURE 


WITH  FORMS 


CLARK  A.  NICHOLS 


VOL.  IV. 


1906 

FOR   THE   AUTHOR 

MATTHEW  BENDER  &  CO. 

ALBANY,  N.  Y. 


T 


Copyright,  1906, 

BY 

CLARK  A.  NICHOLS. 


BOOK  II. 

APPELLATE  PRACTICE. 


PART  I. 
APPEALS  IN  GENERAL. 


Chapter.  Page. 

I.  NATURE  AND  FORM  OF  REMEDY 3592 

Definition,  §  2509. 

Mode  of  review,  §  2510. 

Existence  of  other  remedies  in  lower  court,  §  2511. 

Original   application   to   appellate   division   instead   of   an   appeal, 

§  2512. 
Nature  of  right  to  appeal,  §  2513. 
Appeal  as  new  action  or  proceeding,  §  2514. 
Payment  of  costs  as  condition  precedent,  §  2515. 
Stay  of  appeal,  §  2516. 

II.  JUDGMENTS  AND  ORDERS  APPEALABLE  3599 

Art.    I.     General  rules,  §§  2517-2528. 

Art.  II.     To  court  of  appeals,  §§  2529-2543. 

(A.)     General  considerations,  §§  2529-2534. 
(B.)     As  matter  of  right,  §§  2535-2539. 
(C.)     By  leave  of  court,  §§  2540-2543. 

Art.  III.    To  appellate  division,  §§  2544-2567. 
(A.)     From  supreme  court,  §§  2544-2562. 

(1)  Judgments,  §§  2544-2546. 

(2)  Orders  made  in  actions  in  court,  §§  2547-2554. 

(3)  Orders  made  in  an  action  by  a  judge,  §  2555. 

(4)  Orders  made  in  special  proceedings,  §§  2556-2562. 
(B.)     From   court   other  than  supreme  or   surrogate's   court, 

§§  2563-2567. 

Art.  IV.    To  the  appellate  term,  §§  2568,  2569. 


776891 


jv  TABLE  OF  CONTENTS. 

Chapter.  Page- 
Ill.     WHO  .MAY  APPEAL   3649 

Parties,  §  2570. 

Persons  entitled  to  be  substituted  as  parties,  §  2571. 

Persons  not  parties,  §  2572. 

Person  who  has  not  appealed  to  intermediate  court,  §  2573. 

IV.  WAIVER  OF  RIGHT  TO  APPEAL   3661 

General  considerations,  §  2574. 

Agreements,  §  2575. 

Consent  to  judgment  or  order,  §  2576. 

Acceptance  of  part  of  judgment  or  order  favorable  to  appellant,. 

§  2577. 
Appeal  from  part  of  a  judgment  or  order,  §  257S. 
Payment,  §  2579. 
Accepting  payment,  §  2580. 
Payment    or    acceptance    of    award    in    condemnation    proceedings, 

§2581. 
Acceptance  of  costs,  §  2582. 
Proceeding  with  trial,  §  2583. 

Answering  after  demurrer  is  overruled  or  motion  is  denied,  §  2584, 
Amendment  of  pleadings,  §  2585. 
Pleading  judgment  as  defense,  §  2586. 
Prosecuting  another  action  on  counterclaim,  §  2587. 
Renewal  of  motion,  §  2588. 
Appeal  from  judgment  as  waiver  of  right  to  appeal   from  order, 

§  2589. 
By  entering  judgment  on  remittitur,  §  2590. 

V.  PARTIES  TO  APPEAL  367£ 

Designation,  §  2591. 
Appellants,  §  2592. 
Respondents,  §  2593. 
Substitution,  §  2594. 

VI.  TIME  TO  APPEAL  3680 

Art.  1.    General  considerations,  §§  2595-2601. 

Art.  II.    Notice  to  limit  time  to  appeal,  §§2602-2608. 

Art.  III.     To  court  of  appeals,  §§  2609,  2610. 

Art.  IV.    To  appellate  division  from  supreme  court,  §  2611. 

Art.  V.     To  supreme  court  from  inferior  court,  §  2612. 


TABLE  OF  CONTENTS.  V 

Chapter.  Page. 

VII.  TAKING  THE  APPEAL 3698 

Art.  I.     Leave  to  appeal,  §§  2613-2627. 

(A.)     To  court  of  appeals,  §§  2613-2620. 
(B.)     To  appellate  division,  §§  2621-2626. 
(C.)     Second  or  further  appeals,  §  2627. 

Art.  II.    Notice  of  appeal,  §§  2628-2639. 

Art.  III.    Security  to  perfect  appeal,  §§  2640-2650. 

Art.  IV.    Curing  defects  in  taking  the  appeal,  §  2651. 

VIII.  SECURITY  TO  STAY  PROCEEDINGS   3737 

Art.  I.    Mode  of  procuring,  §§  2652-2670. 
(A.)     General  rules,  §§  2652-2657. 
(B.)     Security  required  by  Code,  §§  2658-2665. 
(C.)     Order  granting  stay,  §§  2666-2670. 

Art.  II.     General  rules  as  to  the  undertaking,  §§  2671-2675. 

Art.  III.     Sureties,  §§  2676-2678. 

Art.  IV.     Liability  on,  and  enforcement  of,  undertaking,   §§  2679- 
2690. 

Art.  V.     Effect  of  stay,  §§  2691-2697. 

IX.  EFFECT  OF  APPEAL    3784 

Scope  of  chapter,  §  2698. 

Time  when  jurisdiction  of  appellate  tribunal  attaches,  §  2699. 

Extent  of  jurisdiction  acquired  by  appellate  court,  §  2700. 

Proceedings  in  lower  court  after  taking  of  appeal,  §  2701. 

Effect  on  judgment  or  order  appealed  from,  §  2702. 

Appeal  as  enlarging  time,  §  2703. 

Waiver  by  taking  of  appeal,  §  2704. 

X.  PAPERS  ON  APPEAL 3791 

Art.  I.     Appeals  to  court  of  appeals,  §§  2705-2714. 

Art.  II.     Appeals  to  appellate  division  from  trial  or  special  term, 
§§  2715-2727. 

Art.  III.     Appeal  to  supreme  court  from  inferior  court,  §§  2728,  2729. 


XI.     BRIEFS  OR  POINTS   

Art.  I.     General  rules,  §§  2730-2732. 

Art.  II.     In  court  of  appeals,  §§  2733,  2734. 

Art.  III.     In  appellate  division,  §§  2735-2740. 


vj  TABLE  OF  CONTENTS. 

Chapter.  Page. 

XII.  CALENDARS  AND  PROCEEDINGS  PRELIMINARY  TO  HEAR- 

ING    3815 

Art.  I.    In  court  of  appeals,  §§  2741-2744. 
Art.  II.     In  appellate  division,  §§  2745-2751. 

XIII.  HEARING   3827 

Where,  and  by  whom,  heard,  §  2752. 
Time  for  hearing,  §  2753. 
Postponement  of  hearing,  §  2754. 
Submission  without  argument,   §   2755. 
Argument,  §  2756. 
Motions,  §  2757. 

XIV.  REHEARING 3831 

General  considerations,  §  2758. 

Grounds,  §  2759. 

Who  may  move,  §  2760. 

Time  for  motion,  §  2761. 

Motion  papers,  §  2762. 

Briefs,  §  2763. 

Copy  of  opinion,  §  2764. 

Delivering  papers  to  clerk,  §  2765. 

Hearing  of  motion,  §  2766. 

XV.  DISMISSAL  OR  WITHDRAWAL  OF  APPEAL 3838 

Dismissal  by  consent,  §  2767. 

Dismissal  on  motion  of  appellant,  §  2768. 

Nature  and  propriety  of  motion  by  respondent,  §  2769. 

Grounds  for  dismissal,  §  2770. 

Waiver  of  right  to  move,  §  2771. 

Motion,  §  2772. 

Hearing,  §  2773. 

Order,  §  2774. 

Effect  of  dismissal,  §  2775. 

Reinstatement,  §  2776. 

XVI.  QUESTIONS  REVIEWED  ON  APPEAL  3851 

Art.    I.     General  rules,  §§  2777-2793. 

Art.  II.     Appeals  to  court  of  appeals,  §§  2794-2805. 
(A.)     Questions  of  fact,  §§  2794,  2795. 
(B.)     Questions  of  law,  §§  2796-2805. 


TABLE  OF  CONTENTS.  yii 

Chapter.  Page. 

Art.  III.     Appeals  to  appellate  division  from  trial  or  special  term, 

§§  2806-2811. 
Art.  IV.    Appeals  to  supreme  court  from  an  inferior  court,  §§  2812, 

2813. 
Art.  V.    Appeals  to  appellate  division  from  appellate  term,  §  2814. 

XVII.  RELIEF  GRANTED  AND  SUBSEQUENT  PROCEDURE.  . .  3894 
Art.    I.     General  rules,  §§  2815-2832. 

Art.  II.     Appeals  to  court  of  appeals,  §§  2833-2835. 

Art.  III.     Appeals  to  appellate  division  from  trial  or  special  term,. 
§§  2836-2840. 

Art.  IV.     Appeals  to  supreme  court  from   inferior  court,   §§  2841,. 

2842. 

Art.  V.    Appeals  from  appellate  term  to  appellate  division,  §  2843. 

XVIII.  COSTS  ON  APPEAL   3936 

Art.    I.     General  Rules,  §§  2844-2849. 

Art.  II.     Discretion  of  court,  §§  2850-2855. 

(A.)     When  costs  are  a  matter  of  right,  §  2850. 
(B.)     When  costs  are  discretionary,  §§  2851-2855. 

Art.  III.    Separate  Bills  of  Costs,  §§  2856-2866. 

Art.  IV.      Persons    entitled    and    liable,    and    payment    from    fund,. 
§§  2867-2869. 

Art.  V.    Amount  and  items,  §§  2870-2875. 

Art.  VI.    Procedure  in  lower  court,  §§  2876-2882. 

(A.)     Construction  of  order  of  appellate  court,  §§  2876-2881. 
(B.)     Taxation,  §  2882. 

Art.  VII.     Collection,  §§  2883-2885. 


PART  II. 

APPEALS  FROM  SURROGATE'S  COURT. 

Code  provisions,  §  2886. 

Decrees  and  orders  which  are  appealable,  §  2887. 

Court  to  which  appeal  is  to  be  taken,  §  2888. 

Designation  of  parties  to  appeal  and  title  of  appeal,  §  2889. 


viii  TABLE  OF  CONTENTS. 

Who  may  appeal,  §  2890. 

Time  to  appeal,  §  2891. 

Notice  of  appeal.  §  2892. 

Parties.  §  2893. 

Security  on  appeal,  §  2894. 

Supplying  defects  in  attempt  to  appeal,  §  2895. 

Effect  of  appeal,  §  2896. 

Appeal  papers,  §  2897. 

Review,  §  2898. 

Judgment  or  order,  §  2899. 

Remittitur,  §  2900. 

Costs,  §  2901. 


PART  III. 

APPEALS  TO  THE  COUNTY  COURT. 
Chapter.  Page. 

I.  GENERAL  CONSIDERATIONS   3993 

Scope  of  part,  §  2902. 

Appeal  as  exclusive  remedy,  §  2903. 

To  what  court  appeal  to  be  taken,  §  2904. 

What  may  be  appealed,  §  2905. 

Who  may  appeal,  §  2906. 

II.  TAKING  THE  APPEAL  3997 

Time  of  appeal,  §  2907. 

Notice  of  appeal,  §  2908. 

Payment  of  costs  and  of  fee  for  return,  §  2909. 

Security  to  perfect  appeal,  §  2910. 

Amendments  and  supplying  omissions,  §  2911. 

III.  STAY  OF  EXECUTION   4004 

Necessity  for  undertaking,  §  2912. 

Contents  of  undertaking,  §  2913. 

Sureties  on  undertaking,  §  2914. 

Service  and  delivery  of  undertaking,  §  2915. 

Effect  after  levy,  §  2916. 

IV.  RETURN   4008 

Necessity,  §  2917. 

Affidavits  where  appeal  founded  on  error  of  fact  not  within  knowl- 
edge of  justice,  §  2918. 


TABLE  OF  CONTENTS. 

IX 

Chapter.  „ 

Page. 

Time,  §  2919. 

Compelling  making  of,  §  2920. 

Preparation,  §  2921. 

Contents,  §  2922. 

Filing,  §  2923. 

Conclusiveness,  §  2924. 

Further  or  amended  return,  §  2925. 

Liability  of  justice  for  false  return,  §  2926. 

V.   REVIEW  AND  JUDGMENT  WHERE  NEW  TRIAL  NOT  HAD.  .4016 

Stipulation  for  reversal,  §  2927. 

Bringing  case  on  for  hearing,  §  2928. 

On  what  papers  appeal  heard,  §  2929. 

Hearing  where  both  parties  appeal,  §  2930. 

Scope  of  review,  §  2931. 

Amendments,  §  2932. 

Grounds  of  reversal,  §  2933. 

Judgment,  §  2934. 

Restitution,  §  2935. 

Rehearing,  §  2936. 

Procedure  in  lower  court  where  new  trial  ordered    §  2937 

Judgment  roll,  §  2938. 

VI.  NEW  TRIAL  IN  COUNTY  COURT  4027 

Actions  in  which  demandable,  §  2939. 

Procedure  where  new  trial  not  allowable,  §  2940. 

Procedure  on  new  trial,  §  2941. 

VII.  COSTS  

4034 

Right  to  where  appeal  is  not  for  a  new  trial,  §  2942. 
*    Amount  where  new  trial  not  sought,  §  2943.' 
Right  to  after  new  trial  in  county  court,  §  2944. 
Amount  where  new  trial  had  in  county  court,  §  2945 
Disbursements,  §  2946. 


TABLE  OF  CITATIONS. 


CODE  OF  CIVIL  PROCEDURE. 


Sec.  Page. 

2 100 

3 102 

4 120 

5 118 

6  104,  733,  2357 

7 119,  197G,  2221 

8 320,  331 

14  311.  324,  331 

15  327,  3040, 3202 

16 327 

17 106,  107 

18 107 

22 119,  822,  1977,  3089 

23  ...  119,  1977,  3089,  3090,  3182 
24 119,  1977,  3089,  3091,  3091 

25  225,  226,  2671,  3089 

26  228,  3270 

27 120 

28 120 

30  120,  182 

33 1692 

34 Ill 

35 Ill 

36 112 

37  113,  2373 

38 113 

40 113 

41 113 

42 113 

43 113 

44 112 

45 Ill 

46 228,  229,  230,  232,  2192 

47 229 

48 232 

49  223,  224 

50 223 

51 222 

52  226,  3271 

53 227 

54 221 

55 240 

56 243 


Sec.  Page, 

57 24a 

59 244 

60 241,  657 

61 311 

62 313 

65  262,  281 

66  ...258,  289,  293,  296,  297,  304, 

306,  2112,  3614,  4064,  4065 

67  250,  252 

68 254 

69 255 

70  242,  251 

71  242,  251 

72 242 

73 252,  263,  264 

74 252,  263,  266 

76 252 

77 253 

78  248,  252 

79  248,  252 

82 314 

83  314,  2302 

87 315 

88 315 

90  311,  1633,  2584 

94 315 

97 312 

100 312,  505,  736,  3088 

101 312,  736 

102 312,  736,  3183,  3187 

103  312,  736 

108  314,  3123 

109 314 

110 3209 

111 1350,  3208,  3212,  3213 

112 3210 

113 , 3210 

114 3210 

115 3210 

116 3210 

117 3210 

119 1313 

122 420 


Xll 


TABLE  OF  CITATIONS. 


Sec.                   Page. 
123 347 

124       347,356 

125 347 

L26 3TT 

131      654,  733 

132       654,  733 

145 1376 

146 1376 

147 1376 

148 1376 

149 1377 

150 1376,  1377 

151 1376,  1377 

152 1376,  1378 

153 1376,  1378 

154 1376,  1378 

155  1376,  1378,  3210 

158 3210 

160  1376,  1379 

161  1376,  1379,  3210 

162 1376,  1379 

163 1376,  1379 

1G4  1376,  1379 

165 1376,  1380 

166 1376,  1380 

167 1376,  1380 

168 1376,  1380 

169 1376,  1380 

170 1376,  1380 

171 3211 

172 314,  735 

173 314 

174 314 

175 314 

176 314 

177 314 

178 314 

179 314 

180 314 

181 314 

182 313 

183 313 

184 313,  3129 

185 313 

186 313,  3129 

187 313 

188 313 

189 313 

190 147,3607,  3608,  3610,  3614, 

3617,  3618,  3620,  3622,  3623, 
3700,  3702,  3706 

191 148,  149,  3607,  3614,  3617, 

3620,  3623,  3700,  3701,  3702, 
3703,  3706,  3742,  3872,  3875 

193  106,  150 

194  .  .  2867,  2967,  2973,  3918,  3920 

195 3819 

196 150 


Sec.  Page. 

197 150 

198 149,  150 

199 149 

200 149 

201 149 

202 150 

209 150 

210 150 

211 150 

212 150 

213  150 

214 150 

215 150 

216 150 

217 157 

218 161 

220 164,  170,  171,  172,  173,  233 

225 173 

226 173 

228 173 

229 163 

230 171 

231 172,  3827 

232 162 

234 162 

237 163 

238 163 

239 112,  170 

241 188 

243 318 

251 315,  2987 

252 315 

253 315 

254 164,  315 

255 315 

256 315 

257 315 

258 315 

259 315 

260 315 

261 315 

262 315 

263 200,  202 

266 '.  .  .  .  200 

274 1709 

277 189 

303 291 

315 203 

316 204,  206 

317 205,  2959 

318 206 

319  210 

320 207,  208 

322 208 

323 209 

324 209 

325 209 

326 208 


TABLE  OF  CITATIONS. 


Xlll 


Sec.  Page. 

327 208,  604 

333 315 

334 315 

338 211 

339 210 

340 184,  192 

341 185 

342  191,  192,  3995 

343 192 

344 193 

345 194 

346 193 

347 186 

348 180 

349 191 

350 187 

351 188 

352 188 

353 188 

354 191,  604 

355 194 

356 195 

357 195 

360 315 

362 456 

363 457 

364 458 

365 458 

366 460 

367 459 

368 459 

369 462 

370 - 462,  463 

371 464 

372 464 

373 464 

374 465 

375  .  465 

376  .... '. '. '  444,"  446, '  466,'  518,  3086 

377 532 

378 956 

379 466,  468 

381  466,  468,  499 

382  .  .  440,  467,  474.  475,  476,  477, 

480,  495,  499 

383 475,476,  478,  479,  480,  481 

384 476,  480,  481,  483 

385 478,  483 

386 496 

387 480,  484 

388 440,  471 

389 455 

390 447 

390a 448 

391  507 

392 501,  512 

393 442 

394 480 


Sec.  Page. 

395 517,  525 

396 511 

397 443 

398 514 

399  515,  516,  762 

400 516 

401  454,  505,  5U7 

402 509 

403  508,  509,516 

404 512 

405 510 

406 503,  3067 

407 500 

408 512 

409 5T2 

410  490,  491,  492,  494 

411 513 

412 443,  513,  2109 

413 956,  988 

414  .  .  14,  441,  442,  445,  454,  3261 

415 453 

416 14,  713,  1268,  1386 

417  715,  718,  720,  823,  1949 

418  712,  715,  719,  721,  736 

419 727,  810 

420 728,  2169,  2776,  2851,  2962 

421  806,  807,  3273 

422 729 

423  730,  2930 

424 814 

425 733,  734 

426 738,  740 

427 739,  2038 

428  739,  2037,  2038 

429 739 

430 741 

431 742,  750 

432 744,  746 

433 727,  783 

434 784,  789 

435 190,  751,  753,  755 

436 751,  754,  792.  3273 

437  751,  756,  937 

438  .  .  759,  760,  761,  762,  763,  770, 

773,  774,  7S"0 

439 763,  767 

440 190,  770,  771,  773,  779 

441 776,  781,  937 

442  776,  777,  781 

444 790,  791 

445  781,  782,  40159 

446 402 

447 393,  409 

448  ...  406,  407,  410,  413,  415,  921 

449  375,  388,  390 

451 394,  717,  718,  797,  920 

452  ..  420,  422,  428,  429,  430,  4070 

453  427,  725,  1050 


XIV 


TABLE  OF  CITATIONS. 


Sec.  Pack. 

454  409,  410,  2921 

456 1708,  2849 

45S 1872 

459 1874,  1875 

460 1878 

461  1S78,  1879,  1915 

162  1880 

463 1872 

464 1875 

465 1878 

566 1880 

567 1880 

469 88,  93 

470 90 

471  936,  2039 

472 89,  90,  190,  310,  2041, 

2042,  2044 

473 2039,  2048 

474 2046,  4137 

475 2047 

476 2046 

477 2041 

478 918 

479 881,  882 

481  836,  918,  922,  927,  1949 

482 9~?9 

483 926 

484 20,  57,  58,  62,  63,  64, 

65,  70,  71,  72,  78,  1093 

487 994 

4S8 956,  996 

490 1006 

492 994,  1007 

493 1005 

494  985,  1002,  1003,  1004 

495 51,  1004 

496 1008 

►497 1016,  1017 

498 942,  956,  4114 

499  957,  1006,  1090 

500  836,  941,950,960,  4098 

501  ...  970,  972,  973,  975,  980,  1008 

502 982 

503 1306,  2755 

504 2755 

505  983 

506  , 983 

507 845,  962,  964,  984,  985 

508 961,  963 

509 942,  948,  2763 

511 1703 

512 2135 

513 887 

514  987,  990,  991 

515 992 

516 988,  932 

517 991 

518 820 


Sec.  Page. 

519 903 

520 823,  882 

521  883,  942,  2761 

522 910 

523 886 

524 847,  907 

525  890,  891,  892 

526  890,  894,  896 

527 895 

528 90O 

529 887 

530 849 

531 851,  858,  859,  860,  862 

4097,  4099 

532 851 

533 852- 

534 854 

535 85& 

536 963 

537  1063,  1070,  1073,  1075, 

2966,  2968,  3633 

538 10G3,  1075 

539 1032 

540 1032,  1044 

541 1032 

542 884,  1022 

543 884,  1026 

544  1050,  10G0.  4147 

545  332,  833,  1063,  1066,  1069 

546  839,  jn<12.  1063 

548  1268,  1272,  1297 

549 31,  1268,  1272,  1278,  1279, 

1281,  1282,  1283,  1284,  1289, 
1294,  1299,  1323,  1324,  2852, 
3197,  3199,  3200,  3201,  3202 

550 1268,  1272,  1279,  1297 

1323,  1324,  3201 

551  1268,  1276,  1315 

552 1268,  1280,  1298,  1299 

554  1268,  1307 

555  1268,  1307 

556 190,  583,  1268,  1314 

557  .  .  1268,  1317,  1318,  1319,  1322 
558 1268,  1315,  1325,  1347 

559  1268,  1326,  1327 

560  1268,  1326,  1327 

561 1268,  1332,  1335,  1336 

562 1268,  1337 

563  1268,  1336,  3201 

564 1268,  1303,  1305,  1350 

565 1268,  1308 

566  937,  1268,  1336 

567 1268,  1339,  1340,  1341 

508  1268,  1339,  1340,  1341, 

1342,  1343,  1344 

572 1268,  1351,  3213 

573 1268,  1355,  1374 

574  1268,  1354 


TABLE  OF  CITATIONS. 


XV 


Sec.  Page. 

575  1268,  1355,1356,  1357 

576 6S1,  1268,  1358 

577 1268,  1358,  1359 

578 1268,1359,  1360 

580  1268.  1904 

581  1268,  1361 

582  1268,  1374 

583  1268,  1374 

584  1268,  1374 

585  1268,  1374,  1375 

586  1268,  1375 

587  1268,  1362 

588  1268,  1362 

589  126S,  1362 

590  1268,  1332 

591 1268,  1365,  1367 

592  1268,  1367 

593  1268,  1367 

594  1268,  1368 

595  1268,  1362 

596  1268,  1371 

597 1268,  1369,  1370 

598  1268,  1369 

599  1268,  1371 

€00 1268,  1363,  1370 

601  1268,  1363,  1364,  1366 

€02  1268,  1557 

'603  ..  1268,  1561,  1567,  1574,  3421 
■604  .  .  1268,  1561,  1567,  1568,  1574 
605 1268,  1571,  1572 

606  190,  583 

607  .  .  1268,  1561,  1570,  1575,  1587 

608  1268,  1570 

609 583,603,  1268,  1561,  1572 

610 1268,  15S3,  1586 

611 1268,  1580,  4135 

612  1268,  1580 

613  1268,  1580 

614  1268,  1582 

615  1268,  1582 

616  1268,  1581 

617  1268,  1616 

618  1268,  1583 

619 319,  1268,  1578 

620 1268,  1578,  1579 

621  1268,  1578 

623  .  .  1268,  1607,  1612,  2935,  2972 

624  1268,  1609,  2935,  2972 

625  1268,  1610 

626  .  .  1268,  1593,  1594,  1596,  1597 

627  609,  1268,  1594,  1597 

628  1268,  1601 

629 1268,  1600,  1601 

630  1268,  1599 

635  .  .  319,  1268,  1389,  1390,  1392, 

1451 

636  1268,  1394,  1397, 

1399,  1404,  1432,  1443 


Sec.  Page. 

637  1268,  1394,  1404,  1405 

638  190,  235,  1268,  1385 

639  1268,  1453 

640 1268,  1455,  1458 

641  1268,  1460,  1461,  1463 

642  1268,  1458 

CAi    1268,  1471 

646  1268,  1412 

647  1268,  1412 

648  1268,  1408 

649  .  .  1268,  1465,  1466,  1468,  1471 

650  1268,  1498 

651 1268,  1498,  1499 

652  1268,  1481 

653  1268,  1481 

654  1268,  1474 

655 1268,  1492,  1495 

656  1268,  1478 

657 1268,  1486,  3123 

658  1268,  1487 

659  1268,  1487 

660  1268,  1488 

661  1268,  1488 

662  1268,  1489 

663  1268,  1489 

664  1268,  1489 

665  1268,  1489 

666  1268,  1489 

667  1268,  1489 

668  1268,  1490 

669  1268,  1490 

670  1268,  1490 

671  1268,  1490 

672  1268,  1491 

673  1268,  1491 

674  1268,  1475 

675 1268,  1476 

676  1268,  1476 

677 87,  1268,  1497 

678 87,  1268,  1497 

679  1268,  1498 

680  1268,  1498 

681 332,  1268,  1474 

682  1268,  1455,  1513,  1517 

683  .  .  235,  1268,  1514,  1520,  1522, 

1524 

686  1268,  1527 

687  1268,  1503 

688  1268,  1504 

689 1268,  1504,  1505 

690 1268,  1506,  1507 

691  1268,  1506 

692  1268,  1510 

693 1268,  1509,  3114 

694 1268,  1509,  3114 

695 1268,  1509,  3123 

696 1268,  1504,  3123 

697  1268,  1484 


XVI 


TABLE  OP  CITATIONS. 


Sec.  Page. 

698  120S,  1532 

Till    12G8,  1532 

702  1268,  1532 

703  1268,  1533 

704  1268,  1533 

705  1268,  1534 

Tor,  126S,  1537 

7i»T  1268,  1541 

708  1268,  1541,  3121 

709  1268,  1534 

710 1268,  1535,  1536 

711  1268,  1536 

712 1268,  1474,  1536 

713  1268,  1618,  1620, 

1622,  1623,  1626,  1630 

714 1268,  1618,  1631 

715 1268,  1618,  1634,  1635, 

1636,  1639,  1654,  3356 

716  1268,  1646 

717  1268,  1658 

718 1268,  1658,  3063 

719  614,  1269 

720 1268,  1558,  3202 

721  .  .  92,  311,  699,  700,  703,  704, 

785,  793,  930,  1021,  2201, 
2589,  2784,  2789 

722  699,  700,  704,  1021 

723  .  .  419,  422,  699,  704,  705,  706, 
707,  708,  795,  1021,  1026,  1029, 

1035,  1043,  1662,  2808 

724  .  .  632,  637,  640,  699,  704,  708, 

2808,  2809,  2813,  2815,  2820, 
2826,  2869,  3231 

725 699,  704,  706,  785,  3185 

726 651,  699,  704 

727 699,  704,  706,  795,  1037 

728 537,  699,  704 

729 678,  679,  700 

731 2005,  2006,  2007 

732 2005,  2008,  2012 

733  2005,  2013 

734  2005,  2012 

735 1975 

736 2003 

737  2003,  2087 

738  1989,  1990,  1993, 

1994,  1996,  1998,  2100 

739  .  1989,  1991,  1992,  1994,  1997, 

1998 

740 1989,  1994,  2003 

741 1989 

743 2015 

744 2016 

745 2018 

746 2018 

747  2019 

748 2019 

749 2019 


Sec.  Page. 

750 2023 

751 2020 

754  2019,  2023 

755  2062,  2063,  2064,  2071 

756 419,  2062,  2073 

757 2062,  2072,  2081 

758  1706,  2062,  2092,  2094 

759  2062,  2096 

760 1050,  2002,  2099 

761  2062,  2098 

762 2062 

763  2062,  2100.  2782 

764  2062,  2066,  2102,  2103 

765 2062,  2080,  2101 

766 1639,  2062,  2079 

767  616,  617 

768 569,  599,  602 

769 595,  596,  1736 

770  238,  602,  1315,  2729 

771  238,  608 

7T2  .  .  189,  238,  602,  603,  605,  635, 

3320 

773  189,  603 

774  632 

775  ...  234,  1911,  1920,  3756,  3922 

776  224,  604 

777 2860 

778  332,  605 

779  ...  628,  629,  2938,  3040,  3044, 

3060,  3096,  3972 

780 584,  591,  691,  938,  1915 

7S1 691,  692,  938 

782 594,  691,  692,  938,  940 

783  691,  693,  883,  938 

784  .  .453,  691,  694,  938,  2098,  2099, 

3685 

785  691,  694,  938,  2826,  3687, 

3996 

786 652,  691,  938,  2823,  3435 

787 691,  697,  938 

788  691,  694,  695,  938 

789 14,  1674,  1675 

790 14,  1674,  1675 

791  ...  14,  1670,  1674,  1675,  1682, 

1686 

792 14,  1674,  1675 

793  ...  14,  1674,  1676,  1683,  1684, 
1685,  1686,  3635,  3822 

794 14 

795 14 

796  14,  587,  648,  654,  655, 

1806,  2835,  3723,  3796 

797  ...  14,  587,  654,  656,  657,  658, 

659,  660,  1806,  2835,  3723 

798  ...  14,  587,  654,  663,  692,  882, 

1024,  1665,  1806,  3723 

799  ...  14,  587,  646,  654,  655,  656, 

1806,  3723 


TABLE  OF  CITATIONS. 


XV11 


Sec.  Page. 

800  ..14,  587,  654,  662,  1806,  3723 

801  .  14,  587,  654,  660,  1806,  3723 
802 14,  587,  654,  1806,  2723 

803  13,  1826,  1827,  1842 

804  13,  1826,  1827,  1834 

805 13,  1826,  1827,  1845,  1852 

806  13,  1826,  1827,  1850 

807  13,  1826,  1827,  1852 

808  13,  1826,  1827,  1856 

809  13,  1826,  1827,  1833 

810  670,  679 

811 670,672,  675,  680,  4, 

812  .  .  670,  673,  674,  676,  679,  681, 

682,  684,  685,  686,  1328.  4085 

813 670,  681,  687 

814  670,  688 

815 670,  683,  1771 

816 309,  670,  682 

817 1691 

818  1692,  1695 

819  1692,  1700 

820  ..  419,  1859,  1862,  1866,  1867, 

1868,  1869,  1870 

821  2132 

822 1689,  2124,  2129 

823  2159,  2162 

824  651,  725,  883 

825 624,  650,  3325 

826 651 

827  ..  581,  1632,  2572,  2577,  2602, 

2935,  2972 

829  1742,  2230 

832  2246,  2260 

83(1 1818 

837  888 

838  1816,  22G4 

842 310,  548,  3315 

843  548,  551 

844  552,  555 

845 564 

846 564 

847 564 

848 565 

849  564 

850 565 

851 565 

852 14,  1969,  1978 

853 14,  330,  1971,  1979,  1984 

854  14,  1967,  1968,  1983 

855  14,  1984 

856  14,  1812,  1972,  1984 

857  1812,  1985 

858  1812,  1985 

859 1977 

860 1309 

861 1350 

862  190,  1350 

863 1310 


Sec.  Page. 

864 1310 

866  1967,  1974 

867  ...  1967,  1968,  1969,1970,  1973 

868 1967,  1970,  1972 

869 1967,  1970,  1973 

870  .  1716,  1720,  1775,  1967,  2965, 

4143 

871  1718,  1720,  1967,  2965 

872  ...  190,  583,  1718,  1720,  1721, 

1722,  1723,  1724,  1726,  1776, 

1791,  1792,  1793,  1794,  1796, 

1804,  1828,  1967 

873  .  1726,  1778,  1779,  1795,  1803, 

1806,  1818,  1822,  1967,  2985 

874  .  . .  332,  1726,  1807,  1809,  1967 
875 1726,  1806,  1967 

876  1726,  1810,  1812,  1967 

877  ..1721,  1777,  1792,  1793,  1794, 

1807,  1967 

878  1716,  1967 

879  1722,  1778,  1967 

880  ...  1726,1807,  1810,  1813,  1967 

881  1726,  1815,  1967 

882 1726,  1727,  1967 

883 1726,  1815,  1967 

884  1726,  1803,  1967 

885  .  578,  579,  580,  581,  582,  791, 

1967 

886  1716,  1795,  1811,  1812 

887  .  .  1716,  1728,  1733,  1734,  1743 

1967 

888  .  .  1716,  1728,  1732,  1967,  4140 

889  .  .  1716,  1728,  1736,  1739,  1967 

890  1716,  1728,  1739,  1967 

891 1716,  1728,  1740 

892  .  .  1716,  1728,  1742,  1743,  1744 

893  .  .  1716,  1728,  1729,  1749,  2965 

894  .  .  1716,  1728,  1729,  1749,  1750 

895  ..  1716,  1728,  1729,  1750,  1751 

896 1716,  1728,  1753 

897 1716,  1728,  1753 

898 1716,  1728,  1729 

899  1716,  1728,  1729,  1748 

900  .  .  1716,  1728,  1729,  1753,  1754 

901  .  1716,  1728,  1729,  1744,  1753, 

1754,  1755,  1756,  1757,  1758 

902  ..1716,  1728,  1729,  1744,  1753, 

1760 

903  1716,  1728,  1729,  1758 

904  1716,  1728,  1729,  1760 

905  1716,  1728,  1729,  1761 

906  1716,  1728,  1729,  1761 

907  1716,  1728,  1729,  1761 

908  .  .  1716,  1728,  1729,  1731,  4U0 

909  364,  1716,  1728,  1762 

910  1716,  1728,  1762,  1763 

911  1716,  1728,  1764 

912  .  .  1716,  1728,  1739,  1742,  17S6 


XV1U 


TABLE  OF  CITATIONS. 


Sec.  Page. 

913 1716,  1728,  1730 

914  ..  1716,  1728,  1770,  1772,  1774 

915  ...  190,  1716,  1770,  1772,  4044 

916 1716 

917  190,  1716 

918 1716 

919 1716,  1770,  1773 

920 332 

921-962  2214,  2215 

927 664 

963 2137 

964  364,  1946,  2137,  2966 

965 2138 

966  1010,  2165 

967  1010,  2166 

968  2140,  2149,  2154,  2155 

969  2138,  2149 

970  2149,  2155,  2158,  2629 

971  ...  583,  1676,  2159,  3627,  3629 

972 2166 

974  2148,  3202 

975 2166 

976 1010,  2138,  2167 

977 1665,  1668,  1670 

978  1681,  21G7 

980  ..  560,  1671,  2134,  2167,  2170, 

2173 

981  1671,  2168 

982  346,  347,  348,  364 

983  347,  354 

984  360,  364 

985  1951 

986  ...... ..1941,  1942,  1943,1945 

987  1927,  1930 

988 1964 

989  1963,  1964 

990 2376 

991 343 

992 2368,  2369,  2387 

993  .  2386,  2387,  2388,  2610,  38S9, 

3928 

994  2384,  2389,  2668,  2789 

995  2344,  2369,  2370,  2389 

996 2371,2684,  2689 

997  .  2653,  2661,  2662,  2663,  2667, 

2668,2671 
998 2654,  2655,  2731 

999  ...  166,  175,  2343,  2653,  2T17, 

2718,  2721,  2727,  3865,  3892 

1000  .  166,  2684,  2689,  2722,  2727, 

2768 

1001  166,  2725  2727,  3626 

1002  .  169,  2684,  2719,  2727,  2729, 

2730 

1003  2165,  2684,  2692,  2717, 

2722  2740 

1004  170,  2656,  2684,'  2739 


Sec.  Page. 

1005  2682,  2685,  2686,  2729, 

2737,  2738,  2740,  3909 

1006 2685 

1007 2720 

1008 2152 

1009  21,  2142,  2143,  2171 

1010  1014,  1019,  2383,2715 

1011  2553,  2555,  2556,  4166 

1012 2553,  2554,  2555 

1013  .  2558,  2567,  2573,  2580,  2602 

1014 2569 

1015  .  .  295,  610,  2171,  2570,  2580, 

2573,  2602,  2739,  2866,  2935, 

2972,  3044 

1016 2588,  2605,  3315 

1017  2591,  2605 

1018  .  .  319,  332,  705,  1029,  2589, 

2590,  2592,  2597,  2600 

1019  2625,  2628 

1020  2382,  2617 

1021  1014,  1015,  2380,  2621 

1022 2377,  2379,  2382,  2386, 

.  2616,  2619 

1023  2378,  2386,  2387,  2609, 

2610,  2611,  2613,  2614,  2615, 
2654 

1024 2583 

1025  2556,  2582 

1026 2590,  2592,  2594,  2598, 

2615,  2616,  2671 
1027 2181,  2183,  2189 

1028  2182,  2189 

1029  313,  2183 

1030  2185,  4157 

1031 2186 

1032 2187 

1033  2187,  2188 

1034 2183 

1053 4010 

1063 2054,  2056,  4154 

1064  2056,  4154 

1065  2057,  4154 

1066  2058,  4154 

1067  2058,  4154 

1068  2057,  4154 

1069  2058,  4154 

1070 2059 

1071 2059 

1079 2182 

1080 2182 

1085 2187 

1086 2187 

1087 2187 

1088 2187 

10S9 2187 

1126 2183 

1130 2187 


TABLE  OF  CITATIONS. 


XIX 


Sec.  Page. 

11(13 2178 

1164 2178 

1165 2178 

1166 2179,  2182,  2199,  2200, 

2703 

1167 2178 

1168 2178 

1169 2179 

1170 2179 

1171 2179 

1172 2180 

1173 2180 

1174 2180 

1175 2180 

1176 2190 

1177 2191 

1178 2191 

1179 2194 

1180 2191,  2193,  2196,  2198, 

2199 

1181 2351 

1182  2110,  2357 

1183 2361 

1184  2361,  2769 

1185  22S8,  2653 

1186 2354 

1187 2297,  2354,  2355,  2359, 

2360,  3799,  3928 

1188 23^6 

1189  2359,  2768 

1200 617,  2751,  2752 

1202 2782 

1203  2783,  2852 

1204  2759,  2762 

1205 1709,  2759,  2760 

1206 ,  2763 

1207  927,  2763 

1209 2756 

1210  2782,  2789,  2793,  2797 

1211 276S 

1212  310,  2133,  2780,  2853 

1213  310,  2133,  2780,  2855 

1214 2133,  2780,  2858 

1215 2133,  2739,  2780,  2858, 

2861,  2862,  2866,  4173 

1216  2133,  2780,  2858,  3909 

1217 759,  760,  2133,  2780,  2859 

1218  2133,  2780,  2849 

1219 810,  2133,  2780,  2853, 

2862 

1220  1707,  2767 

1221  2648,  2775 

1222  2775,  2776 

1223 2775-2777 

1224 2779 

1225 2778 

1226  2648,  2779 

1227  2185,  2780 


Sec.  Page. 

1228  2647,  2770 

1229  2647,  2770 

1230 2648,  2776,  2780 

1231 2648,  2758,  2780,  2781, 

3034 

1232 2740,  2866,  2867 

1233 2769 

1234  2289,  2780 

1235 2784 

1236 2758,  2782,  2791 

1237 2662,  2786,  2788 

1238  2786,  2787 

1239  2786,  27S7 

1240 322,  338,  3059,  3197,  3956 

1241  322,  333,  335,  3062 

1242 3220,  3221,  3244 

1243 3221 

1244  3159,  3244 

1245 2791 

1246  310,  2791 

1247 2793 

1248 2795 

1250 2796 

1251  2797,  2800,  3074,  3136, 

3361 

1252  2801,  2802,  3073,  3095 

1253  2799,  3138 

1254 2807 

1255 2802 

1256  2803,  2805 

1257  2804,  2805 

1258 2805 

1259 2806 

1260 261,  2833,  2838 

1261 2838 

1262 2832 

1263  1637,  2832 

1264 2840 

1265 2840 

1266 2840 

1267 2840 

1268 2835 

1269 2800 

1270 2833 

1272  2790,  2834 

1273 39,  712,  2880 

1274  2882,  2885 

1275 2887 

1276 2888 

1277 2889 

1278  712,  2881 

1279  33,  34,  35,  36,  167,  571, 

712 

1280 18,  33,  36 

1281  ...  33,  36,  37,  38,  1558,  2933 
1282 2815,  2824,  2827 

1283  2815,  2821 

1284  2815,  2823 


XX 


TABLE  OF  CITATIONS. 


Si  C. 

1286 

1287 

L288 
L289 

1290 
L291 

1292 
1  293 
1294 
1295 
129G 
1297 
129S 
1299 
1300 
1301 
1302 
1303 


2S15, 


2S15 
2823 
2X15 
2815 
2815 
2815 
2815 
2815 


3G57, 


3597 
3673, 
3673 
3673 


3714 

3684 

3721,  3733, 


3649 
3672 
3677 
3674 
3676 
3673 
3710 
3719 
3722 
3735, 
3984 
3683 
3744 
3740 
3764 
3771 
3778 
3703, 
3780 

1311 

1312  3739,  3740 

1313 3729,  3739 

1314  3727 

1315 3792,  3793,  3794, 

1316  3682,  3716,  3717 

1317  3753,  3927,  3928 

1318 3609,  3612,  3696, 


1304 3682 

1305  670,  3726 

1306  670,  3734 

1307  670,  3726 

1308  670,  3769 

1309 84,  670,  3776 

1310 670,  3701, 


1319 

1320 

1321  

1322 

1323  3134,  3188, 

1324 

1325 3690, 

1326  

1327 3740,  3745, 

3750,  3753, 
1328 3740,  3745, 

1329 3740,  3745, 

1330 3740,  3745, 

1331 3740,  3745, 

1332 670,  3740, 


Pack. 
2821 
2828 
2827 
2828 
2S2S 
2825 
2826 
2831 
3593 
3651 
3976 
3844 
3729 
3677 
3675 
3723 
3721 
3848 
3745, 
4002 
3684 
3982 
3982 
3982 
3982 
3982 
3743, 
37S2 
3120 
3744 
3740 
3739 
3806, 
3859 
3718 
3929 
3S78, 
3884 
3913 


2806 


5755 


3694 
.3726 
3746, 

3754 
3748, 

3748, 

3749, 

3750, 
3754 

3745, 
3753 


3935 
3914 
3914 
3909 
3607 
3695 
3728 
3747. 
3764 
3753, 
3764 
3753, 
3764 
3753. 
3764 
3753, 
3764 
3747, 
3764 


Sec.  Page. 

1333  670,  3726,  3745,  3764 

1334 670,  3730,  3731,  3761, 

3762,  3764,  3765 

1335 3766 

1336  3613,  3884 

1337 3873,  3878,  3918 

1338 3880 

1339 2653,  2655,  3794,  3798, 

3885 

1340  ...  175,  195,  196,  3644,  3645, 

3647,  3892,  3956 

1341 3690,  3697,  3728,  3741, 

3745,  3766 

134  2  175,  195,  197,  3645 

1343 3690,  3697,  3728,  3741, 

3759 

1344 176,  3647,  3708,  3806, 

0090 

1345 3782,  3806,  3934 

1346  .  .  .  167,  176,  571,  2685,  3596, 
3625,  3886,  3887 

1347 178,  1628,  2739,  3627, 

3628,  3629,  3637,  3648 

1348  ..  174,  178,  bo96,  3603,  3628, 

3638,  3648,  3741,  3756 

1349  167,  176,  571,  3626 

1350 178,  3613,  3694,  3t>95, 

3714,  3885,  3888,  4006 

1351 627,  2785,  3066,  3f90, 

3696,  3728,  3741,  3745. 
3759,  3760,  3766 

1352  3740,  3"'  • 

1353 2675,  2676,  3799,  3800, 

3802,  3803,  3932 

1354  3792,  3933 

1355  3827,  3932 

1356 179,  3638,  3647 

1357 179,  197,  3646 

1358 179 

1359  3690,  3696 

1360  3728,  3741,  3742,  3759 

1362  3092,  3174 

1363 3099 

1364  3057,  3058 

1365  3067,  3085,  3092,  3203 

1366  3093,  3096,  3183,  3205 

1367  3094,  3096,  3183,  3205 

1368 3093,  3094,  3174 

1369  3094,  3095 

1370 1538,  3095,  3107 

1371  3095,  3276 

1372 3205 

1373  3085,  3097 

1374 3085 

1375 3064,  3068,  3203 

1376  3068,  3073,  3098,  3203 

1377  3069,  3203 

1378  3070,  3203 


TABLE  OF  CITATIONS. 


XXI 


Sec.  Page. 

1379  3073,  3203 

1380 2802,  3073,  3074,  307G, 

3128 
1381 3073,  3076,  3077,  3079, 

3080 

1382 3067 

1383  3074 

1384 3100,  3126,  3128,  3142, 

3221 

1385 3100,  3128,  3140 

1386 3100,  3140,  3142 

1387 313,  3100,  3131 

1388 3059,  3100,  3129,  3174, 

3183 

1389  1416,  1417 

1390  1417,  1429 

1391 1419,  1429,  1431,  3108, 

3111,  3112,  3332 

1392 1416 

1393 1423 

1394 1428 

1395 1425 

1396 1425 

1397 1426 

1398 1426 

1399 1426 

1400 1427 

1401 1427 

1402 1427 

1403 1428 

1404  1416,  1430 

1405 3100 

1406  3100,  3103 

1407 1485 

1408 1485,  3100,  3103 

1409  3100,  3102 

1410 3100,  3107,  3129 

1411  3100,  3108 

1412  3100,  3113 

1413  3100,  3122 

1414  3100,  3123 

1415  3100,  3115 

1416  3100,  3123 

1418  3100,  3123 

1419  ■ 3100,  3124,  3125 

1420  3100,  3124 

1421  419,  1549,  3100,  3125 

1422 1550,  3100,  3125 

1423  3100,  3125 

1424 1551,  3100,  3125 

1425  1551,  3100,  3125 

1426  1552,  2942,  3100,  3125 

1427 1553,  3100,  3125 

1428 3100,  3129,  3130 

1429  3100,  3127 

1430 2798,  3136,  3139 


Sec. 

1431  3136 

1432  3136 

1433  3098 

1434  3136,  3140 

1435  3136,  3141,  3142 

1436  3136 

1437 3136,  3142 

1438  3136 

1439  3136 

1440  3136,  3148 

1441  3136 

1442  3136 

1443  3136 

1444 332,  3136 

1445  3136 

1446  ..3136,  3163,  3167,  3169 
1447 3136,  3163 

1448  3136,  3163 

1449  3136,  3163,  3165 

1450 3136,  3163,  3165, 

3169 

1451  ..3136,  3165,  3167,  3170 

1452  ..3136,  3165,  3166,  3167 

1453  3136,  3166 

1454  3136 

1455 3136,  3173 

1456  3136 

1457  3136 

1458  3136,  3155,  3163 

1459  3136,  3163,  3167 

1460 3136,  3167 

1461 3136,  3162 

1462  3136 

1463 3136,  3171 

1464  3136 

1465  3136 

1466  3136 

1467  3136,  3171 

1468  3136,  3176,  3181 

1469  3136 

1470  3136 

1471 3136,  3155,  3160 

1472  3136 

1473  3136 

1474  3136 

1475  3136,  3157 

1476  3136 

1477  3136 

1478  3136 

1479  3136 

1480 3087,  3136 

1481  3136 

1482  3136,  3155 

1483  3136 

1484  3136 

1485  3136 


Page. 
3138 
3139 
3136 
3217 
3218 
3142 
3143 
3146 
3147 
3152 
3153 
3154 
3154 
3154 
3151 
3173 
3169 
3181 
3167 
3167, 
3170 
3171 
3171 
3167 
3167 
3174 
3166 
3166 
3167 
3169 
3169 
3168 
3173 
3178 
3176 
3179 
3176 
3179 
3182 
3180 
3180 
3161 
3157 
3158 
3158 
3174 
3173 
3175 
3157 
3152 
3152 
3155 
3167 
3155 
3155 
3155 


XXI 1 


TABLE  OF  CITATIONS. 


Sir.  Page. 

14S6  3136,  3155 

1  1ST  3196,  3197,  3199 

L488  3196,  3202 

1489  3196,  3204 

1  I'.nt  3085,  3196,  3205 

1491  3196,  3214 

1492  ..3087,  3196,  3208,  3210,  3214 

1493  3087,  3196,  3214 

1494  ..3087,  3196,  3208,  3213,  3214 

1495  3137,  3196 

1499 458,  483,  4076 

1500 1706 

1501  392,  2943 

1512 267 

1513 267 

1521 2070 

1522  1706,  2070 

1523 2070 

1525 3001 

1534 87 

1535 89,  2039,  2041 

1536  2046,  2049 

1537 61 

1541  777 

1544 2156 

1557 4089 

1581 2016 

1596 441,  459,  465,  518,  4072 

1616 3755 

1618 332 

1627 74 

1628  49,  87 

1638  41,  350 

1650 2148 

1659 2220 

1660 2141 

1670 2053 

1671  2053 

1672 2053 

1G73  2053 

1674 2053 

1675 3246 

1676 3242 

1677  3240 

1678  ..3217,  3218,  3219,  3222,  3223 

1679  2052,  3224 

1681  1556,  1578 

1682 1832 

1689 65 

1690 26 

1699 681 

1702 191 

1716 332 

1717 2788 

1731 3097 

1733 1370 


Si:c.  Page. 

1736  2071,  2098 

1752  441,  477 

1757  889,  2156 

1758 478 

1768 364 

1769 2926 

1772  1620,  3438 

1773 332 

1774  724,  777 

1776 888 

1778  939,  1672,  2850,  4086 

1779 134 

1780  135,  764,  1448,  4054 

1784  3388,  3438 

1786 3421 

1787 1556,  1571,  1620 

1788 1620 

1790 74,  78,  1050 

1798 87 

1799 87 

1800 2150 

1801 1620 

1802  1556,  1620 

1806  1556,  1571 

1809  1571,  1572 

1814 391 

1815  75,  2757 

1816 2791 

1817 804 

1819 499 

1822  441,  2954 

1823 2796 

1825  3081,  3084,  3098 

1826  3082,  3083 

1827 3085 

1828 2079 

1829 3064 

1835  ..2907,  2917,  2949,  2954,  2955 
1836 2907,  2917,  2949,  2954, 

2955,  2959 

1837 2915 

1838 2966 

1843 2915 

1865 2555 

1867 2556 

1868 2915,  3383,  3421 

1869 1627 

1871  .  3383,  3389,  3397,  3400,  3414 

1872 3383,  3389,  3397 

1873  3383,  3425 

1874 3383,  3401,  3430 

1875  3383,  3430 

1876  1556,  1620 

1877 1620,  3383,  3423 

1878 3383 

1879  3262,  3383,  3388,  3401 


TABLE  OF  CITATIONS. 


XXlll 


Sec.  Page. 

1880 87 

1SSG 87 

1887 87 

1888  87,  1636 

1889 1636 

1890  1636,  4052 

1895 734 

1897  722,  723 

1899  40 

1901 378 

1902  392,  441,  454,  483,  2915, 

4075,  4076 

1904 2784 

1909 377,  384,  2064 

1910 2064 

1911 379 

1912 2831,  2932,  2966 

1913 86,  2842,  2966 

1914 1717 

1915 1373 

1919  415,  717 

1925 417 

1930  419,  2071,  2079 

1934  3099,  3114,  3206,  3400 

1935  3099,  3114,  3206 

1936  2793,  2796 

1938 887 

1940  1269,  1392 

1943 2838 

1945 406 

1947 1620 

1950 2150 

1955 1556 

1958 2150 

1962 159 

1969 2915 

1972 471 

1973 441 

1985 3058 

1986 2961 

1987  1382,  3043 

1989 1697 

1990  .  .  672,  1326,  1454,  1543,  1578 
1991 1680 

2007  332,  3042 

2008  158,  1985 

2009 158,  191,  1985 

2010 158,  191,  1986 

2011  1986 

2012 1986 

2013 1987 

2014 1987 

2015 104 

2017 158 

2068 158,  236,  239 

2069 158 


Sec.  Page. 

2073 332 

2086 2933 

2087  3640,  3742 

2089 3742 

2092  158,  237 

2093  158,  237 

2101  3642,  3742 

2104 158 

2122 3593 

2123 158 

2127 237 

2135 333 

213S  167,  571 

2142  3909 

2143  2934,  3945 

2150 189 

2188 3214 

2189 3214 

2190 3214 

2191  3214 

2192 3211 

2193  2984,  3214 

2194 3214 

2195 3214 

2196 3214 

2197 3214 

2198 3214 

2199 3214. 

2200 3214 

2201 3214 

2202  3214 

2203  3214 

2204 3214 

2205  3214 

2206  3214 

2207 3214 

2208 3214 

2209 3214 

2210 3214 

2211  3214 

2212 3214 

2213  3208,  3214 

2214 3214 

2215 3214 

2216 3214 

2217 3214 

2218 3214 

2234 191 

2260  195,  3945,  3995 

2262 3742,  4001,  4004 

2263 3909 

2265  1556 

2268  328,  3041 

2269  2600 

2270 3185 

2272  2600,  260T 


XXIV 


TABLE  OP  CITATIONS. 


Sec.  Pack. 

3401 

2284  324,  340 

2320  159 

2323 2934 

2336  2934 

2361  3638 

2365 712 

2366  39,  2111 

2393  104 

2419 159 

2430 2881 

2432  ..3256,  3257,  3258,  3272,  3275 

2433  ..197,  3255,  3267,  3303,  3312, 

3356 

2434 191,  3270,  3291 

2435  ..3260,  3280,  3290,  3298,  3321 
..3256,  3280,  3285,  3290,  3321 

2437 3308,  3309,  3311 

2438  3308,  3310 

2439 3312 

2440  3311,  3312 

2441  3280,  3286,  3290,  3294 

3321,  3348 

2442    3291,  3312,  3313,  3317 

2443 3313,  3314,  3317 

2444  3295,  3316,  3320,  3321 

2445 3315,  3317,  3318 

2446 3325-3327,  3334,  3349 

2447  ..1620,  3325,  3328,  3329,  3334, 

3350,  3361 

2448 3334 

2449  3335,  3367 

2450 3335 

2451  3304,  3305 

2452 : 3295,  3304 

2453 3310 

2454  3344-3346 

2455  2934,  3341,  3353 

2456  2934,  3343 

2457 333,  3317,  3335 

2458  3273,  3276,  3397,  3398 

2459 3290,  3313 

2460 3324 

2461 3265,  3272 

2462  3271 

2463 3259,  3262,  3263,  3265, 

3311,  3353 

2464  3346-3348,  3353,  3354 

2465 3349 

2466 3352,  3357.  3358 

2467  3354,  3360 

2468  3354,  3360,  3362,  3367 

2469 3352,  3358,  3363 

2470 3355 

2471 3376 

2472  213 


Sec.  Page. 

2481 3989 

2514  3977 

2545 3986,  3987,  3990 

2550  3974 

2552  3974 

2554  3255,  3271 

2556 3974 

2568 3976 

2568-2589 3592,  3974 

2569 3978,  3979 

2570 3974 

2571 3979,  3987 

2572  3979 

2573 3981 

2574 3979,  3980 

2575 3976,  3982,  3984 

2576 3986 

2577  3982,  3983 

2578 3982,  3983,  3984 

2579 3982,  3983,  3984 

2580  3982,  3984 

2581 3982 

2582  3982,  3985 

2583 3982,  3985,  3986 

2584 3982,  3983 

9R85 3991 

2586 3853,  3988 

2587 3989 

2588 3990 

2589  3951,  3992 

2599 3979 

2633  4002 

2648 485 

2670 3986 

2677 4006 

2718 18 

2723 3083 

2827 , 159 

2861 212 

2863  2914,  2917 

2870 319 

2944 4031 

3017 467,  2795,  3064 

3043  2794,  3065,  090,  3096 

3044 3994 

3044-3073 3592 

3045 3995 

3046 3997,  3998,  3999 

3047  3999,  4001 

3048  4000 

3049 4002 

3050  4004,  4005,  4006 

3051 4007 

3052 4007 

3053  4011,  4013 

3054 4008 


TABLE  OF  CITATIONS. 


XXV 


Sec.  Page. 

3055  4008,  4011,  4014,  4015 

3056 4009 

3057 4009 

3058 4024 

3059 4023 

3060 4041 

3061 4026 

3062 4017 

3063  4017,  4020,  4022,  4034 

3064  3995,4018,  4023 

3065 4025 

3066 3945 

3067 4035 

3068  195,  3995,  3998,  4027 

3069  4001 

3070  .  2002,  4003,  4035,  4036,  4037 

3071  195,  4030 

3072 4040 

3073 4040 

3095  3995.  3997 

3102  3995,  3997 

3103  4001,  4004 

3104  3995,  3997 

3105  4001,  4004 

3107  441,  484 

3126  729 

3160 211,  759,  1887 

3161  ..  211,  590,  1080,  1673,  1904, 

3027 

3162  211,  1673 

3163 3212 

3164 2019 

3165  719 

3166 881 

3168 1359,  1360,  1904 

3169 1394 

3170  734 

3171 2966 

3173  2379,  2383 

3175 1478 

3177  211,  1273 

3178  211,  1273 

3179  211,  1273 

3180  211,  1273 

3181  211,  1273 

3182  211,  1273 

3183  211,  1273 

3184  211,  1273 

3185  211,  1273 

3186  211,  1273 

3187  211,  1273 

3188 211,  3648,  3893 

3189 211,  3648,  3893 

3190 211 

3191  211,  3713 

3192 211 


Sec.  Page. 

3193 211 

3194  211,  3935 

3207 729 

3210  1272 

3216 210 

3217 1272 

3218  1272 

3219  676,  1272 

3228  .2001,  2899,  2900,  2906,  2907, 

2913,  2914,  2915,  2918,  2920, 

2921,  2922,  2929,  2962,  3940, 

3941,  4037,  4038 

3229 2001,  2899,  2900,  2906, 

2920,  2929,  2932,  2953,  4037, 
4038 

3230  2899,  2900 

3231  2899,  2900,  2921,  3949 

3232 2754,  2777,  2899,  2900, 

2901,  2934,  3040 

3233  2899,  2900,  2901,  3040 

3234  2899,  2900,  2922 

3235 2899,  2900,  2924 

3236  1608,  2899,  2900,  2935 

3237  2899,  2900 

3238  2899,  2900,  3938,  3940, 

3941,  3942 

3239  2899,  2900,  3938,  3944, 

3948,  3956 

3240  ..2899,  2900,  2933,  3945,  3956 

3241  2899,  2900,  3043 

3242  2899,  2900,  2961 

3243 2899,  2900,  2961 

3244 2899,  2900,  2938 

3245  2899,  2900,  2939 

3246  .  2899,  2900,  2949,  2950,  2954 
3247 333,  2899,  2900,  2943, 

2948,  2949,  3950 

3248  2899,  2900,  2993,  3031 

3249  93,  2899,  2900,  2960 

3250  2899,  2900 

3251 1609,  2899,  2961,  2962, 

2991,  3938,  3952,  3953,  3954, 

3955 

3252 2899,  2994,  2997 

3253  2899,  2997,  3005,  3006, 

3008,  3020 

3254  2899,  3020 

3255  2031,  2899 

3256  .  .  2899,  2977,  2988-2990,  3958 

3257  2899,  2993 

3258 2899,  2993,  3031 

3259  2899,  2994 

3260  2899,  2962 

3261  2899,  2900 

3262  ..311,  2034,  2899,  2996,  3026, 

3033,  3034 


XXVI 


TABLE  OF  CITATIONS. 


Sec. 

Page. 

3263 

.2899,  3027 

3264 

2899, 

3028, 

3035,  3039 

3265 

311, 

2899, 

3035,  3037 

3266 

2899,  3033 

3267 

289S 

,  2988 

,  3028-3030 

3268 

.18S3,  1885, 

1887, 

1888,  1889, 

1890,  1895, 

1898, 

1900,  2899 

3269 

1883,  1890, 

1895, 

1900,  2899 

3270  . 

1885, 

1890,  2899 

3271  . 

.1888,  1890, 

1895, 

1899,  1900, 
2899 

3272 

.  1896,  1899 

1901 

1905,1906, 
2899 

3273 

1903, 

1906,  2899 

3274 

1904, 

1906,  2899 

3275 

1904, 

1906.  2899 

3276 

1906,  2899 

3277 

1908,  2899 

3278 

1908,  2899 

3279 

1883,  2899 

3280 

2899, 

3046,  3047 

3281 

2899, 

3046,  3047 

3282 

2899, 

3046,  3047 

3283 

2899,  3046 

3284 

2899,  3046 

3285 

2899,  3046 

3286 

2899,  3046 

3287 

2899, 

3046,  3050 

3288 

2899, 

2981,  3046 

3289 

2899,  3046 

3290 

2899,  3046 

3291 

2899,  3046 

3292 

2899,  3046 

3293 

2899,  3046 

3294 

2899,  3046 

3295 

2899,  3046 

3296 

2899, 

3046,  3047 

3297 

2899, 

3046,  3246 

3298 

2S99,  3046 

3299 

2899,  3046 

3300 

2899,  3046 

3301 

.  2669,  2899, 

3046, 

3793,  3806 

3302 

2899,  3046 

3303 

2899,  3046 

3304 

2899,  3046 

3305 

2899,  3046 

3306 

2899,  3046 

3307 

313, 

2899, 

2990,  3046, 
3089,  3246 

Sec.  Page. 

3308  2899,  3046 

3309  314,  2899,  3046,  3050 

3310  2899,  3046 

3311 315,  2899,  3046 

3312  2899,  3046 

3313  2899,  3046 

3314  2899,  3046 

3315  2899,  3046 

3316  2899,  3046 

3317  2899,  3046 

3318  .  1982,  2899,  2981,  2982,  3046 

3319  2899,  3046 

3320 1655,  2899,  3046 

3321  2899,  3046 

3322  2899,  3046 

3323  2899,  3046 

3324  2899,  3046 

3325  2899,  3046 

3226  2899,  3046 

3327  2899,  3046 

3328  2899,  3046 

3329  2899,  3046 

3330 2899,  2925,  3046 

3331  2899,  3046 

3332  2899,  3046 

3333 10,  12,  3046 

3334 12 

3336 11 

3337 11 

3339 18 

3341 490 

3342 1432 

3343  .  220,  308,  312,  322,  378,  476, 

535,  1280,  1281,  1318,  1321, 

1392,  1393,  1394,  1529,  1535, 

1574,  1887,  1976,  2178,  2377, 

2614,  3089,  3115,  3258,  3382, 

3623 

3346 2066 

3347  1695,  1883,  3938,  3996 

3369 2934 

3372  2934,  3005 

3375  3642,  3742 

3376  3742,  3945 

3391 159 

3409 3995 

3411 2926 


CODE  OF  PROCEDURE. 


Sec.  Page. 

11 3715 

69 18 

91 440 


Sec.  Page. 

94     450,  481 

110 517 

122  428,  429,  1858 


TABLE  OF  CITATIONS. 


XXVII 


Sec.  Page. 

123 346,  359,  1927 

124 1927 

125 1927 

126 1941 

127 713 

129  28,  722,  728 

130 715 

132 1465 

140 820 

150  844,  973 

152 1076 

157  888,  896 

165 962 

167 63,  66,  73 

177 1050 

178 1273 

179 1272 

191 1363 

227 1389 

267 2770 


Sec.  Page. 

268 2770 

269 2770 

270 2770 

271 2770 

272 2770 

316 2960 

375 40 

376 40 

377 40 

378 40 

379 40 

380 40 

381 40 

388 1826 

401 578 

410  660 

414 647 

427  134 

1693 741 


PEISTAL  CODE. 


Sec.  Page. 

12 213 

13 214 

148  242,  251 

149 252 


Sec.  Page. 

150 252 

268 664 

344 318 

670 252 


GENEKAL  EULES  OF  PEACTICE. 


Rule.  Page. 

2  309,  649,  651,  823,  1964 

3  309,  577,  620,  623,  625,  636 

4  309,  577,  682,  1332,  1453, 

1577,  1581 

5  .  .  248,  673,  679,  680,  1360,  2026 

6  312,  785 

7  309,  310 

8  310,  2796 

9 810 

10  273,  278 

12 2022 

13  1335,  1461,  1583 

14  .  .  .  1681,  1827,  1834,  1835,  1842 
15 1681,  1827,  1847 

16  1681,  1827,  1853,  1854 

17  1770,  1771,  1772,  1773, 

1774,  1827 

18  665,  735,  785,  787 

19 647,  822,  915,  1093,  2784 

20 1740 

21 586,  588,  592 

22  833,  1065,  1068,  106S 

23 561,  562,  1954 

c. 


Rule.  Page. 

24  560,  692,  883,  939 

25  536,  575,  637,  1433,  1795, 

1808,  3283 

26  '.  169,  2862 

27  622,  628 

28  560,  1672,  2174 

29  2221,  2231,  2303,  2306 

30  1608,  2593,  2607,  2634, 

2638,  3317 

31  2162,  2163,  2656,  2689, 

2737,  2739,  2741 

32  2656,  2659,  2660,  2663, 

2670,  2673 

i  33  2670,  2674 

34  ...  2663-2665,  2672,  2673,  2680, 

3801 
35 2674 

36  .  . .  1671,  1680,  1689,  2125,  2130 

37  .  . .  584,  585,  588,  591,  592,  593, 

594,  600,  613,  614,  629,  691, 
701,  702,  1672,  4082 

38  ..  37,  167,  571,  599,  1570,  2725, 

2769,  3798 


XXV111 


TABLE  OF  CITATIONS. 


Rule  Page. 

39  .  .  .  1G73,  2725.  3821.  3822,  3896 

40 574,  576.  587,  609,  2725 

41  .  .  2652,  2662,  2725,  3799,  3800, 
3802,  3803,  3804,  3812,  3813, 

3821,  3843 
43   ..2663,3802,3803,3804,3811, 

3814,  3829 

44 1673,  3828,  3830 

45 3022 

47 609,  2376,  3830 

48  1945,  1955 

49 90,  91,  2042,  2043,  2045 

50 2042,  2050,  2051 

51 2046 


Rule.  Page. 

52 159 

62  3220-3222 

67 3226 

68  2016,  2017 

69 2019,  2021,  2022 

77  .  .  1639,  1643,  1645,  1647,  1656, 

3367,  3368,  3373 

78  1647,  3373 

79  2583,  2584 

80  597,  1628 

81 1646 

82 1797 

83 109 

84  109,  120,  2603 


COURT  RULES. 

Court  of  Appeals. 


Rule.  Page. 

1  243,  3795 

2  587,  609,  3795 

3 244 

4  245,  3796 

5  245,  3796 

6  246,  3797 

7 246,  3796,  3809 

8  3810,  3827 

10 3820 


sRule.  Page. 

11  3817,  3830 

12  3819,  3820 


13 

14 
15 
16 
17 
19 


3829 
3818 
3896 
3920 
3921 
3816 


20  3836,  383^ 


Supreme  Court,  First  Dept. 


Rule.  Page. 

1 244,  600,  601 

2 601 

4 601 


Rule.  Page. 

5    601,  3292 

7 601 

12 601 


Supreme  Court,  Sp.  T.,  First  Dept. 

Rule.  Page. 

2    587,  609 

5  608 

6 3634 


City  Court  op  New  York. 


Rule. 

21  ... 

22  ... 

23  ... 

24  ... 

25  ... 


Page. 
. .  713 
. .  132 
. .  602 
..3314 
.  .   939 


Rule. 
3  .... 


APPELLATE  TERM. 


Page. 
..3807 


APPELLATE  DIVISION. 


Page. 

3822 

3811 

3811 

6    3824,  3826 


Rule. 
1 

4  .... 

5  .... 


Rule. 
7  .... 


Page. 

3708 

3836,  3837 
3813 


TABLE  OF  CITATIONS. 


XXIX 


APPELLATE   DIVISION  —  SECOND  DEPARTMENT. 


Rule. 

4 

6  .... 


Page. 

.   3824 
.   3822 


Rule.  Page. 

7  3821 

11 3813,  3836,  3837 


APPELLATE  DIVISION —  THIRD  DEPARTMENT. 

Rule.                                              Page.       Rule.  Page. 

1       3821      10 3813 

5       3824      11    3836,3837 

6  3824,  3825      13 3823 

9 3814       15 3811 

APPELLATE  DIVISION  — FOURTH  DEPARTMENT. 


Rule.  Page. 

1 3821 

5 3824 

6 3824 

8 3825 


Rule.  Page. 

9  3812,  3813 

10 3814 

11  3813 

14  3836,  3837 


N.  Y.  CONSTITUTION. 


Page. 

1846,  art.  6,  §  12 123 

1846,  art.  6,  §  13 222 

1846,  art.  6,  §  ;L4 181 

1888,  art.  6,  §  6 146 

1894,  art.  6,  §  1 157 

1894,  art.  6,  §§  1,  2 156 

1894,  art.  6,  §  2 171,  172,  173, 

174,  233 

1894,  art.  6,  §  3 224 

1894,  art.  6,  §  5 155,  200 

1894,  art.  6,  §  6 155 

1894,  art.  6,  §  7 150,  151 


Page. 

1894,  art.  6,  §  9 149 

1894,  art.  6,  §  10 222 

1894,  art.  6,  §  12 222 

1894,  art.  6,  §  13 214 

1894,  art.  6,  §  14 181,  191 

1894,  art.  6,  §  15 212 

1894,  art.  6,  §  17 212 

1894,  art.  6,  §  18 98,  199 

1894,  art.  6,  §  19 150,  164 

1894,  art.  6,  §  20 221,  222,  223 

1894,  art.  7,  §  14 455 


U.  S.  CONSTITUTION. 


Page. 

Art.  1,  §  6 1311 

Art.  3,  §  2 137 


Page. 

Art.  6,  §  9.. 3606,  3610,  3620,  3622, 

3872,  3875 

Art.  6,  §  20 2583 


REVISED  STATUTES. 


Page. 

1  R.  S.  662,  §  8 4067 

1  R.  S.  662,  §  9 441,  4067 

1  R.  S.  757.  §  5 554 

2R.  S.  286,  §  59 1357 


Page. 

2R.  S.  292,  §1 456 

2  R.  S.  301,  c.  49 439 

2  R.  S.  301,  §§  50,  52 440,  471 

2  R.  S.  301,  §  51 440 


XXX 


TABLE  OF  CITATIONS. 


Page. 

2R.  S.  348,  §7 1270 

2  R.  S.  348,  §  8 1271 

2  R.  S.  348,  §  9 1308 

2R.  S.  409 346 

2R.  S.  4G8 1620 

2R.  S.  480,  §  1 832 


Page. 

2  R.  S.  481,  §  7 723 

2  R.  S.  554,  pars.  24,  25 578 

R.  S.  Part.  3,  c.  3,  title  2,  §  86  247 
R.  S.  Part  3,  c.  7,  title  5,  §  10.  704 
R.  S.  p.  88,  §  36 514 


KEVISED  STATUTES,  NINTH  EDITION. 

Page.  Page. 

1014,  §  31 483   1438,  §  11 485 

1026,  §  55 483  1  1855,  §  3 485 

1274,  §  37 484 

KEVISED  STATUTES,  UNITED  STATES. 


Sec.  Page. 

446  1603 

1237  1312 

1610 1312 

4063 1311 

4065 1311 


Sec.  Page. 

4251 138 

4718  1424 

4747 1423 

5198 364 


GREATER  NEW  YORK  CHARTER. 


Sec.  Page. 

197 2019 

263  750 

341 1313 


Sec.  Page. 

1260  1571,  1572,  1578 

1351 4052 

1382 21ia 


Sec. 
7  ... 


PERSONAL  PROPERTY  LAW. 


Page. 
.  3432 


REAL  PROPERTY  LAW. 


Sec.  Page. 

74 3387,  3390,  3404 

78    3383,  3401 


Sec.  Page. 

232   3387,  3432,  3433 


GENERAL  LAWS. 


Page. 

1839,  c.  210 203 

1842,  c.  130,  title,  I,  §  5 203 

1845,  c.  231 1363 

1847,  c.  240,  §  2 106 

1847,  c.  280,  §  25 163 

1853,  p.  974  751 

1854,  c.  96 203 

1857,  c  185  734 


Page. 
1858,  c,  314 3370 

1868,  c.  853,  §  8 361 

1869,  c.  249 315 

1870,  c.  203 146 

1870,  c.  408,  p.  947 155 

1870,  c.  467,  §  1 184 

1871,  c.  238 150 

1872,  c.  161 417 


TABLE  OF  CITATIONS. 


XXXI 


Sec.  Page. 

1872,  c.  627 213 

1873,  c.  239 200 

1876,  c.  431,  §  7 450 

1876,  c.  439 3220 

1876,  c.  444 213 

1876,  c.  448 845 

1877,  c.  31 1425 

1877,  c.  416 Ill,  223,  1859 

1877,  c.  417,  §  1,  p.  44 184 

1879,  c.  534 356 

1879,  c.  542 258,  845 

1880,  c.  36 2218,  2219 

1880,  c.  245,  §  1 1273 

1880,  c.  245,  §  1,  p.  46 184 

1880,  c.  269 159,  3956 

1880,  c.  354 163 

1880,  c.  423 159 

1880,  c.  480 182,  184 

1880,  c.  535 751 

1880,  c.  536 1776 

1880,  c.  537 1620 

1881,  c.  211 213 

•1881,  c.  369 315 

1881,  c.  531 417 

1881,  c.  639 1620 

1882,  cc.  173,  325 315 

1882,  c.  331 1620 

1882,  c.  410,  §  1103 1928 

1883,  c.  26,  §  1 203 

1883,  c.  Ill 150 

1883,  c.  234 229,  232 

1883,  c.  378 1620 

1884,  c.  285 1620 

1884,  cc.  329,  336 213 

1884,  c.  346 746 

1885,  c.  40 1620 

1885,  c.  262 778 

1885,  c.  380 159 

1885,  c.  448 448 

1886,  c.  194,  §  1 356 

1886,  c.  310 1620 

1886,  c.  401 315 

1886,  c.  572 84,  4076 

1886,  c.  572,  §  1 482,  484 

1886,  c.  593,  §  1 1273 

1886,  c.  672 1350,  3199 

1887,  c.  36 213 

1887,  c.  673 417 

1888,  c.  435 213 

1888,  c.  449 •. ..  484 

1888  c.  498 507 

1888,  c.  507 197 

1888  c.  555 2218,  2219 

1888,  c.  577,  §  3 356 

1889,  c.  167 3220 

1889  c.  440 482 

1889,  c.  441 206 


Sec 
1889 
1890 
1890 
1890 
1890 
1890 
1891 
1S91 
1S92 
1892 
1892 
1892 
1892 
1892 
1892 
1892 
1892 
1892 
1892 
1892 
1892 
1892 
1892 
1892 
1892 
1892 
1892 
1892 
1892 
1892 
1893 
1S94 
1894 
1894 
1894 
1894 
1894 
1895 
1895 
1895 
1895 
1895 
1895 
1895 
1895 
1895 


1895, 
1896, 
1896, 
1896, 
1896, 
1896, 
1896, 
1896, 
1896, 


Page. 

c.  527 150 

c.  26  150 

c.  158 3161 

c.  451 228 

c.  523,  §  17 4133 

c.  528 252,  254 

c.  99  252 

C  105,  §  184 163 

c.  677 453 

c.  677,  §  5 454 

c.  677,  §  6 220 

c.  677,  §  11 648 

c.  677,  §  14 535 

c.  677,  §  16 671 

c.  677,  §  20 647 

c.  677,  §  24 105,  664 

c.  677,  §  25 694 

c.  677,  §§  25-28 694 

c.  677,  §  26 694,  695 

c.  677,  §  27 695,  696 

c.  677,  §  28 696 

c.  680,  §  168,  p.  1655 106 

c.  682,  §  2 1311 

c.  686,  §  165 309 

c.  689,  §  33 1620 

c.  689,  §  115 1865 

c.  690 1424 

c.  690,  §  30 746 

c.  690,  §  316 1425,  1620 

c.  868 4133 

c.  6S6 18 

c.  246 1859,  1870 

c.  307 467 

C  308 1732 

c.  338,  §  31 1312 

c.  428 1818 

c.  447 453 

C  267 229,  232 

c.  376 233 

c.  527 2917 

c.  553,  §  14 163 

c.  633 1863 

C  723,  §  13 159 

c.  793 554 

cc.  807,  948 213 

c.  946 107,  205,  232,  237, 

253,  254,  1732,  1739,  1742, 
1756 

c.  961 309 

c.  94 1635 

c.  112 1928 

cc.  139,  322 1620 

c.  362 163 

c.  376,  §  29 355 

c.  547 679 

c.  547,  §  249 552,  553 

c.  547,  §  249a 555 


xxxn 


TABLE  OF  CITATIONS. 


Sec. 

Page. 

Sec. 

1896,  c.  547, 

§  250 

554 

1900, 

L896 

c.  547, 

§  256 

556 

1900, 

L896 

c.  547, 

§  257 

555 

1900, 

1896 

c.  547, 

§  260 

556 

,  557 

1900, 

1896 

c.  548. 

184 

1900, 

1S96 

c.  557. 

254 

1900, 

1896 

c.  559. 

148 

1901, 

1896 

c.  574, 

§  261 

557 

1901, 

Iv.m; 

c.  665. 

505 

1901, 

1S96 

c.  897. 

509 

1901, 

1896 

c.  908, 

§  263 

3438 

1901, 

1S96 

c.  909, 

§133 

159 

1901, 

1896 

c.  910. 

4075 

1901, 

1897 

c.  36.. 

213 

1901, 

1897 

c.  40.. 

660 

1901, 

1897 

c.  221. 

150 

1902, 

1897 

C  268. 

..  229 

,  232 

1902, 

1897 

c.  281. 

480 

1902, 

1897 

c.  312. 

1928 

1902, 

1897 

c.  345. 

1424 

1903 

1897 

c.  606. 

1751 

1903, 

1897 

c.  614. 

105 

1903, 

1898 

c.  85.. 

1425 

1903, 

1898 

c.  110. 

2914 

1903, 

1898 

c.  169. 

246 

1903, 

1898 

c.  212, 

§  171 

1313 

1904, 

1899 

c.  61.. 

..  258 

,  306 

1904, 

1899 

c.  225. 

246 

1904, 

1899 

c.  301. 

760 

1899 

c.  320. 

185 

1904, 

1899 

c.  336. 

213 

1904, 

1899 

c.  340. 

..  564 

,  565 

1904, 

1899 

c.  378. 

226 

1904, 

1899 

c.  502. 

.1770,  1772, 

1773, 

1774 

1905, 

1899 

C  524. 

741 

1905, 

1899 

c.  542 
c.  587. 

554 

1905, 

1899 

163 

1905, 

1900 

150 

Page. 

C  117 481,  482 

c.  147 599,  602 

c.  567,  §  6 483 

c.  569 2138 

c.  591 1043,  1662 

c.  753 163 

c.  84 555 

c.  243 2196 

cc.  286,  440 213 

c.  354 4075 

c.  397 1424 

c.  512 431 

c.  526 580,  582 

c.  609 393 

c.  611 554 

c.  193 448 

c.  484 163 

c.  528 4130 

c.  600,  p.  1748 84 

2194 

c.  85 2387,  2616 

c.  216 229 

c.  217 1631 

c.  461 3108 

c.  467 4065 

c.  379 2066 

c.  416 4157 

c.  500.  .4056,  4093,  4102,  4104, 
4112 

c.  518 4101 

c.  541 3123 

c.  557 2920 

c.  747 4137 

c.  175 3108 

c.  204,  p.  422 4166 

c.  431 4102,  4104,  4112 

c.  436 4157 


BOOK  2. 

APPELLATE   PRACTICE. 


PART  I. 

APPEALS  IN  GENERAL. 


Chapter.  Section. 

I.  Nature  and  Form  of  Remedy 2509-2516 

II.  Judgments  and  Orders  Appealable 2517-2569 

III.  Who  May  Appeal 2570-2573 

IV.  Waiver  of  Right  to  Appeal 2574-2590 

V.  Parties  to  Appeal 2591-2594 

VI.  Time  to  Appeal .'  2595-2612 

VII.  Taking  the  Appeal 2613-2651 

VIII.  Security  to  Stay  Proceedings 2652-2697 

IX.  Effect  of  Appeal 2698-2704 

X.  Papers  on  Appeal 2705-2729 

XI.  Briefs  or  Points 2730-2740 

XII.  Calendars  and  Proceedings  Preliminary  to  Hearing.  .  2741-2751 

XIII.  Hearing 2752-2757 

XIV.  Rehearing 2758-2766 

XV.  Dismissal  or  Withdrawal  of  Appeal 2767-2776 

XVI.  Questions  Reviewed  on  Appeal 2777-2814 

XVII.  Relief  Granted  and  Subsequent  Procedure 2815-2843 

XVIII.  Costs  on  Appeals 2844-2885 

§  2508.     Contents  of  volume  and  how  divided. 

This  book  is  confined  to  a  consideration  of  questions  relating 
to  appellate  practice.  It  treats  of  appeals  to  the  court  of  ap- 
peals, to  the  supreme  court,  and  to  the  county  court,  except 
\h<\t  appeals  from  particular  city  courts  are  not  considered  ex- 
cept as  regulated  by  general  Code  provisions. 


3502  NATURE  AND  FORM  OF  REMEDY.  §  2509 


Definition. 


The  book  is  divided  into  three  parts.  The  first  part  covers 
appeals  to  the  court  of  appeals  and  to  the  supreme  court,  with 
the  limitations  already  stated,  except  appeals  from  surrogate's 
courts.  It  will  embrace  all  the  Code  provisions  found  in  the 
Code  chapter  (17)  relating  to  appeals. 

The  second  part  is  confined  to  a  consideration  of  appeals 
from  a  surrogate's  court  to  the  appellate  division  of  the  su- 
preme court.  The  right  to  appeal,  and  the  procedure,  is  gov- 
erned by  the  Code  provisions  (§§  2568-2589)  found  in  the  chap- 
ter relating  to  surrogates'  courts.  For  that  reason,  such  ap- 
peals are  treated  separately. 

The  third  part  is  devoted  to  appeals  to  the  county  court  from 
a  justice  of  the  peace  court.  The  Code  provisions  relating 
thereto  (§§  3044-3073)  are  found  in  the  chapter  on  Courts  of 
Justices  of  the  Peace. 

CHAPTER  I. 

NATURE  AND  FORM  OF  REMEDY. 

Definition,  §  2509. 
Mode  of  review,  §  2510. 

Writ  of  error. 

Writ  of  certiorari. 

Mandamus. 

Existence  of  other  remedies  in  lower  court,  §  2511. 

Motion  to  modify,  amend,  or  vacate. 

Setting  verdict  aside. 

Motion  for  rehearing. 

Motion  for  new  trial. 

Original  application  to  appellate  division  instead  of  an  appeal, 

§  2512. 
Nature  of  right  to  appeal,  §  2513. 
Appeal  as  new  action  or  proceeding,  §  2514. 

Change  of  title  after  taking  of  appeal. 

Payment  of  costs  as  condition  precedent,  §  2515. 
Stay  of  appeal,  §  2516. 

§  2509.    Definition. 

An  appeal  is  the  removal  of  a  case  from  an  inferior  to  a  su- 
perior jurisdiction,  to  correct  errors  of  the  court  of  inferior 


§  2510  NATURE  AND  FORM  OF  REMEDY.  3593 


Mode  of  Review. 


jurisdiction.1  The  word  is  sometimes  applied  to  the  removal 
of  a  matter  from  the  decision  of  an  inferior  officer  to  a  su- 
perior officer,  but  this  is  not,  in  law  affairs,  an  accurate  use  of 
the  term.2 

§  2510.    Mode  of  review. 

The  remedy  by  appeal  was  unknown  to  the  common  law  but 
in  place  thereof  were  the  writs  of  error  and  of  certiorari.  Ap- 
peals were  proper  only  in  equity  cases,  before  the  Codes,  but 
now  an  appeal  is  the  remedy  in  both  legal  and  equitable  ac-> 
tions.  Practically  all  judgments  and  orders  in  actions,  and 
orders  in  special  proceedings,  are  now  reviewable,  either  di- 
rectly or  indirectly,  by  appeal. 

Writ  of  error.  Before  the  Codes,  judgments  in  com- 
mon-law actions  were  reviewed  by  writ  of  error  while  decrees 
in  chancery  were  reviewed  by  appeal.  The  old  Code  abolished 
the  distinction  betAveen  actions  at  law  and  suits  in  equity  and 
it  necessarily  followed  that  the  mode  of  review  should  be  the 
same  whether  the  action  was  formerly  cognizable  at  common 
law  or  in  equity.  In  pursuance  of  such  scheme,  the  writ  of 
error  was  abolished.3  The  writ  of  error  was  an  original  writ, 
a  writ  of  right,  and  when  sued  out  was  the  commencement  of 
a  new  suit.  Being  a  new  suit,  it  followed  that  the  statute  of 
limitations  applied. 

Writ  of  certiorari.  A  writ  of  certiorari  is  not  permissi- 
ble to  review  a  determination  where  the  determination  can  be 
adequately  reviewed  by  an  appeal  to  a  court  or  to  some  other 
body  or  officer.4 

Mandamus.     Where  there  is  an  adequate  remedy  by 

appeal,  mandamus  does  not  lie.5  Where  a  plaintiff  rightfully 
claims  a  preference  on  the  trial  calendar,  and  defendant  does 
not  oppose  the  motion,  but  the  application  is  denied,  the  rem- 

1  People  v.  Justices  of  Marine  Court,  11  How.  Pr.  400. 

2  Elliott's  App.  Proc.  p.  15. 

3  Code  Civ.  Proc.  §  1293. 

4  Code  Civ.  Proc.  §  2122,  subd.  2. 

»  People  ex  rel.  Metropolitan  St.  R.  Co.  v.  Roesch,  27  Misc.  44,  57  N. 
Y.  Supp.  295;  People  ex  rel.  Wright  v.  Coffin,  7  Hun,  608. 


359  [  NATURE  AND  FORM  OF  REMEDY.  §  2511 

Existence    of    Other    Remedies    in    Lower    Court. 

edy  is  by  mandamus  rather  than  by  appeal;0  but  the  mere, 
fact  that  there  is  no  respondent,  and  the  controversy  is  with 
the  court  below  and  not  with  an  adverse  party,  does  not  pre- 
clude an  appeal  where  mandamus  would  not  lie.7 

§  2511.    Existence  of  other  remedies  in  lower  court. 

It  is  oftentimes  necessary  to  make  a  motion  in  the  trial  court 
before  taking  an  appeal.  The  trial  court  should  ordinarily  be 
given  a  chance  to  itself  correct  its  errors  before  the  proceed- 
ings are  transferred  to  another  tribunal  for  review. 

Motion  to  modify,  amend,  or  vacate.  A  default  judg- 
ment or  order,8  or  an  ex  parte  order,9  is  not  directly  appealable, 
but  a  motion  to  vacate  must  first  be  made  in  the  trial  court  and 
then  an  appeal  may  be  taken  from  the  order  if  the  motion  is 
denied.  The  Code  expressly  provides  that  certain  orders  in 
supplementary  proceedings  cannot  be  reviewed  in  the  first  in- 
stance by  appeal  but  a  motion  to  vacate  must  be  made  and  the 
appeal  taken  from  the  order  denying  the  motion.10 

If  a  judgment  or  order  is  merely  irregular,  the  remedy,  in 
the  first  instance,  is  by  a  motion  and  not  by  an  appeal.11  For 
instance,  where  there  is  a  mistake  in  the  judgment  or  order 
entered,12  or  in  the  form  of  the  judgment,13  or  where  the  judg- 
ment contains  an  unauthorized  provision,14  or  where  the  judg- 
ment does  not  show  that  the  recovery  is  in  a  representative 

e  Hayes  v.  Consolidated  Gas  Co.,  143  N.  Y.  641. 
7  Katz  v.  Diamond,  16  Misc.  577,  3S  N.  Y.  Supp.  766. 
s  See  post,  §  2570. 
s  See  post,  §  2522. 
io  Vol.  3,  pp.  3267-3269. 

ii  Sluyter  v.  Williams,  37  How.  Pr.  109;  Beers  v.  Shannon,  73  N.  Y. 
292. 

12  Union  Nat.  Bank  v.  Kupper,  63  N.  Y.  617.  Error  in  amount  based 
on  mistake.  Loy  v.  Metropolitan  El.  R.  Co.,  15  App.  Div.  1,  43  N.  Y. 
Supp.  1158. 

13  Wright  v.  Nostrand,  94  N.  Y.  31,  41;  Buck  v.  Remsen,  34  N.  Y.  383; 
Young  v.  Atwood,  5  Hun,  234. 

i-i  Sabater  v.  Sabater,  7  App.  Div.  70,  39  N.  Y.  Supp.  958;  Shrady  v. 
Van  Kirk,  77  App.  Div.  261,  266,  79  N.  Y.  Supp.  79;  Foley  v.  Foley,  15 
App.  Div.  276,  44  N.  Y.  Supp.  588;  Cole  v.  Tyler,  65  N.  Y.  73;  Cagger  w 
Lansing,  64  N.  Y.  417. 


§  2511  NATURE  AND  FORM  OF  REMEDY.  3595 

Existence  of  Other  Remedies  in  Lower  Court. 

capacity,15  or  where  the  judgment  is  entered  contrary  to  a 
stipulation,16  or  where  the  judgment  does  not  conform  to  the 
verdict,  decision,  or  report  on  which  it  is  based,17  the  remedy, 
in  the  first  instance,  is  by  motion  and  then,  if  the  motion  is 
denied,  by  appeal. 

It  is  well  settled  that  an  order  of  one  special  term  cannot  be 
reviewed  by  another  special  term,  but  only  by  an  appeal,18  ex- 
cept where  there  was  no  jurisdiction  to  make  the  order.19 

Judicial  errors  or  jurisdictional  defects  can  be  corrected  by 
a  motion  to  vacate  the  judgment  or  order,  or  by  an  appeal.20 
An  error  of  judgment,  as  distinguished  from  an  error  the  re- 
sult of  mistake  or  inadvertence,  as  to  costs,  is  to  be  corrected 
by  appeal  and  not  by  motion.21 

Errors  committed  by  a  referee  on  the  trial  of  an  issue  of  fact 
cannot  be  corrected  on  motion  by  the  special  term  but  can  be 
reviewed  only  by  appeal.22 

If  an  appeal  from  an  order  has  been  taken,  it  need  not  be 
withdrawn  before  moving  to  vacate  the  order.23 

Setting  verdict  aside.     Formal  errors  in  a  verdict,24  or 

relating  to  its  entry,25  are  to  be  remedied  by  a  motion  to  correct 
the  verdict  and  not  by  appeal. 

Motion  for  rehearing".     A  misunderstanding  or  mistake 

in  regard  to  agreements  made  on  the  argument  of  a  motion 
should  be  corrected  by  an  application  for  a  rehearing.20 

is  Beers  v.  Shannon,  73  N.  Y.  292. 

"Levis  v.  Burke,  51  Hun,  71  3  N.  Y.  Supp.  386. 

«  Goodwin  v.  Schreiber,  86  Hun,  339,  33  N.  Y.  Supp.  456;  Howland  v. 
Howland,  20  Hun,  472;  Walbridge  v.  James,  4  Hun,  793. 

is  Matter  of  White,  101  App.  Div.  172,  91  N.  Y.  Supp.  513;  Corbin  v. 
Casina  Land  Co.,  26  App.  Div.  408,  49  N.  Y.  Supp.  929. 

lo  Kamp  v.  Kamp,  59  N.  Y.  212. 

20  Vol.  3,  p.  2810. 

2i  Norton  v.  Faucher,  92  Hun,  463,  36  N.  Y.  Supp.  1032. 

22  Albany  Brass  &  Iron  Co.  v.  Hoffman,  30  App.  Div.  76,  51  N.  Y.  Supp. 
779 

23  Belmont  v.  Erie  R.  Co.,  52  Barb.  637. 

24  Brigg  v.  Hilton,  99  N.  Y.  517. 

as  Rhodes  v.  Bunts,  21  Wend.  19.  See,  also,  White  v.  Calder,  35  N.  Y. 
183. 

26  Herbert  v.  Smith,  6  Lans.  493. 


3596  NATURE  AND  FORM  OF  REMEDY.  §  2512 

Original  Application   to  Appellate  Division. 

Motion  for  new  trial.     Where  the  trial  is  by  jury,  a  mo- 


lion  for  a  new  trial  is  necessary  to  bring  up  questions  of  fact 
for  review  on  an  appeal  to  the  appellate  division.27  An  appeal 
from  the  judgment  alone,  in  such  a  case,  brings  up  for  review 
only  questions  of  law.  The  same  rule  applies  where  specific 
questions  of  fact  in  an  equity  case  have  been  submitted  to  a 
jury.28  But  if  the  trial  is  by  the  court  or  a  referee,  without  a 
jury,  questions  of  fact  may  be  reviewed  on  appeal  from  the 
judgment  though  no  motion  for  a  new  trial  is  made.20 

§  2512.     Original  application  to  appellate  division  instead  of 
an  appeal. 

The  appellate  division  of  the  supreme  court  was  intended  as 
a  substitute  for  the  now  abolished  general  term  of  the  supreme 
court,  and  to  constitute  the  branch  of  the  supreme  court  whose 
jurisdiction  should,  in  general,  be  appellate  rather  than  orig- 
inal. Ordinarily  the  appellate  division  will  not  hear  motions, 
in  the  first  instance,30  but  it  has  "power  to  vacate  or  modify, 
without  notice,  or  on  such  notice  as  it  shall  deem  proper,  any 
order  in  an  action  or  special  proceeding  made  by  a  justice  of 
the  supreme  court  or  by  the  court  without  notice  to  the  adverse 
party;  *  *  *  and  may  grant  any  order  or  provisional  remedy 
which  has  been  applied  for  without  notice  to  the  adverse  party, 
and  refused  by  the  supreme  court  or  a  justice  thereof. " 31  In 
short,  under  this  Code  provision,  an  ex  parte  order  may  be  va- 
cated or  modified  on  an  original  application  to  the  appellate 
division,  though  no  appeal  is  pending ;  and  if  an  ex  parte  mo- 
tion for  an  order  or  provisional  remedy  has  been  denied,  the 
appellate  division  may,  on  an  original  application,  grant  the 
motion.  This  Code  provision  has  been  applied  in  two  compara- 
tively recent  cases  where  an  original  application  was  made 
to  modify  an  order  and  the  relief  was  granted.32 

27  Vol.  3,  pp.  2685,  2745. 

28  Vol.  3,  p.  2685. 

29  Code  Civ.  Proc.  §  1346,  subd.  1. 
so  Vol.  1,  p.  165. 

3i  Code  Civ.  Proc.  §  1348. 

32  Matter  of  Tilyou,  57  App.  Div.  101,  67  N.  Y.  Supp.  1097;  Marty  v. 
Marty,  66  App.  Div.  527,  530,  73  N.  Y.  Supp.  369. 


§  2514        NATURE  AND  FORM  OF  REMEDY.  3597 


Nature  of  Right  to  Appeal. 


§  2513.     Nature  of  right  to  appeal. 

The  right  of  appeal  is  not  a  natural  or  inherent  right  but 
rests  upon  the  statute  alone,  and  may  be  taken  away  by  the 
legislature  unless  conferred  by  the  organic  law  of  the  state.33 
The  power  of  the  legislature  to  control  the  remedies  so  far  as. 
they  affect  existing  actions  includes  the  power  to  extend  the 
time  to  appeal,  or  to  grant  a  new  right  of  appeal,  provided 
some  time  yet  remains,  according  to  the  law  in  force  when  the 
legislature  acted,  within  which  an  appeal  might  be  taken.34 
If,  however,  according  to  the  law  existing  when  the  statute  ex- 
tending the  time  to  appeal,  or  granting  a  new  right  of  appeal, 
was  passed,  the  judgment  had  become  final  and  unalterable, 
because  no  further  right  of  appeal  existed,  then  the  judgment 
confers  a  vested  right  and  is  property  of  which  the  owner  can- 
not be  deprived  by  an  act  of  the  legislature,  or  otherwise  than 
through  due  process  of  law.35  In  short,  the  right  to  appeal 
from  a  judgment,  which  has  passed  through  all  the  appellate 
courts  that  have  jurisdiction  to  hear  it,  cannot  be  conferred  by 
subsequent  legislation.36 

§  2514.    Appeal  as  new  action  or  proceeding. 

The  better  rule  seems  to  be  that  an  appeal  from  a  judgment 
is  not  to  be  regarded  as  a  new  action  or  proceeding  to  enforce 
the  judgment  but  is  simply  a  proceeding  in  the  action  for  the 
correction  of  errors.37 

Change  of  title  after  taking  of  appeal.    After  an  appeal 

is  taken  to  another  court,  the  name  of  the  appellate  court  must 
be  substituted  for  that  of  the  court  below,  in  the  title  of  the 
action  or  special  proceeding,  and  in  any  case  the  name  of  the 
county,  if  it  is  mentioned,  may  be  omitted ;  otherwise  the  title 
shall  not  be  changed  in  consequence  of  the  appeal.38 

33  Croveno  v.  Atlantic  Ave.  R.  Co.,  150  N.  Y.  225. 

34-30  Germania  Sav.  Bank  v.  Suspension  Bridge,  159  N.  Y.  362,  3G8. 

37  Boon  v.  City  of  Utica,  4  Misc.  583,  25  N.  Y.  Supp.  846;  Pensa  v. 
Pensa,  3  Misc.  417,  23  N.  Y.  Supp.  186;  Miller  v.  Shall,  67  Barb.  446; 
Shuler  v.  Maxwell,  38  Hun,  240.  Contra,  Pratt  v.  Allen,  19  How.  Pr.  450 ; 
Turell  v.  Erie  R.  Co.,  46  App.  Div.  296,  61  N.  Y.  Supp.  308. 

38  Code  Civ.  Proc.  §  1295. 


3598  NATURE  AND  FORM  OF  REMEDY.  §  2516 


Payment  of  Costs. 


§  2515.     Payment  of  costs  as  condition  precedent. 

The  fact  that  the  costs  imposed  by  an  order  have  not  been 
paid  does  not  preclude  an  appeal  from  such  order.39 

§  2516.     Stay  of  appeal. 

An  application  for  a  stay  of  an  appeal  must  be  made  in  the 
court  in  which  the  appeal  is  pending.40 

39  Weehawken  Wharf  Co.  v.  Knickerbocker  Coal  Co.,  25  Misc.  309,  54 
N.  Y.  Supp.  566. 

40  Van  Orden  v.  Van  Orden,  27  App.  Div.  136,  50  N.  Y.  Supp.  184. 


CHAPTER  II. 
JUDGMENTS  AND  ORDERS  APPEALABLE. 

ART.  I.     GENERAL  RULES. 

Statutory  provisions  making  judgment  or  order  final,  §  2517. 

Judgment  or  order  not  entered,  §  2518. 

Default  judgment  or  order,  §  2519. 

Consent  judgment  or  order,  §  2520. 

"Void  judgment  or  order,  §  2521. 

Ex  parte  order,  §  2522. 

Part  of  judgment  or  order,  §  2523. 

Amended  orders,  §  2524. 

Order  where  leave  to  move  to  renew  or  vacate  is  granted,  §  2525. 

Where  only  abstract  questions  involved,  §  2526. 

Indirect  appeal,  §  2527. 

Second  appeal,  §  2528. 

After  dismissal  of  appeal. 

ART.  II.     TO  COURT  OF  APPEALS. 

(A)  GENERAL  CONSIDERATIONS. 

Historical,  §  2529. 

Code  provision,  §  2530. 

Right  as  limited  by  statute,  §  2531. 

Restriction  of  right. 

Enlargement  of  right. 

"Actual  determinations"  of  appellate  division,  §  2532. 

Consent  as  conferring  jurisdiction,  §  2533. 

Whether  judgment  or  order  must  be  appealed  from,  §  2534. 

(B)  AS  MATTER  OF  RIGHT. 

Enumeration,  §  2535. 
Final  judgments,  §  2536. 

Appeal  from  "order"  of  appellate  division. 

Interlocutory  judgments,  §  2537. 

Final  order  in  special  proceedings,  §  2538. 

What  is  a  special  proceeding. 

What  is  the  "final"  order. 


3600  JUDGMENTS  AND  ORDERS  APPEALABLE. 

Analysis. 

Order  granting  new  trial  on  exceptions,  §  2539. 

Necessity  for  stipulation. 

Estoppel  to  object  to  want  of  stipulation. 

Relief  from  stipulation. 


(C)  BY  LEAVE  OF  COURT. 

Constitutional  and  Code  provisions,  §  2540. 

Appeal  from  interlocutory  judgment  or  nonappealable  order, 
§  2541. 

Form  and  contents  of  questions  certified. 

Questions  brought  up  for  review. 

Judgment  or  order  from  which  appeal  to  be  taken. 

Appeal  in  action  commenced  in  inferior  court,  §  2542. 

Appeal  in  particular  actions  where  appellate  division  unani- 
mously affirms,  §  2543. 

What  is  a  judgment  of  affirmance. 

What  is  a  "unanimous"  affirmance. 


ART.  III.     TO  APPELLATE  DIVISION. 
(A)  FROM  SUPREME  COURT. 

1.  Judgments. 

Final  judgments,  §  2544. 
Interlocutory  judgments,  2545. 

Judgment  or  order  entered  on  decision  of  appellate  term  on  ap- 
peal from  the  city  court,  §  2546. 

2.  Orders  Made  in  Actions  in  Court. 

Code  provision,  §  2547. 

Order  relating  to  provisional  remedy,  §  2548. 

Orders  relating  to  settlement  or  resettlement  of  a  case,  §  2549. 

Order  granting  or  refusing  new  trial,  §  2550. 

Order  involving  some  part  of  the  merits,  §  2551. 

Order  affecting  a  substantial  right,  §  2552. 

Order  imposing  conditions. 

Order  to  show  cause. 

Order  on  motion  for  reargument  or  resettlement. 

Order  granting  or  refusing  leave  to  sue. 

Orders  as  to  parties. 

Orders  as  to  change  of  place  of  trial. 

Order  transferring  cause  to  another  court. 

Orders  as  to  pleadings. 


JUDGMENTS  AND  ORDERS  APPEALABLE.  3601 


Analysis. 


Order  on  motion  for  judgment  on  the  pleadings. 

Orders  as  to  mode  of  trial. 

Order  denying  postponement. 

Order  requiring  election  between  causes  of  action. 

Order  of  dismissal  or  nonsuit. 

Orders  relating  to  depositions. 

Order  for  discovery. 

Orders  relating  to  calendar. 

Order  to  hear  exceptions  at  appellate  division. 

Orders  relating  to  judgments. 

Orders  relating  to  costs  and  fees. 

Orders  relating  to  writ  of  assistance. 

Order  in  effect  determining  the  action,  §  2553. 
Order  declaring  statute  unconstitutional,  §  2554. 

3.  Orders  Made  in  an  Action  by  a  Judge. 

Code  provision,  §  2555. 

4.  Orders  Made  in  Special  Proceedings. 

Code  provision,  §  2556. 
Orders  in  mandamus  proceedings,  §  2557. 
Orders  in  contempt  proceedings,  §  2558. 
Orders  in  condemnation  proceedings,  §  2559. 
Orders  relating  to  writ  of  prohibition,  §  2560. 
Orders  in  habeas  corpus  proceedings,  §  2561. 
Orders  in  supplementary  proceedings,  §  2562. 

(B)    FROM   COURT   OTHER   THAN    SUPREME    OR     SURROGATE'S 
COURT. 

Scope  of  sub-article,  §  2653. 
Final  judgments,  §  2564. 
Interlocutory  judgments,  §  2565. 
Orders  in  actions,  §  2566. 
Orders  in  special  proceedings,  §  2567. 

ART.  IV.     TO  THE  APPELLATE  TERM. 

General  considerations,  §  2568. 

Appeal  from  city  court  of  New  York,  §  2569. 

From  final  judgments. 

From  interlocutory  judgments. 

From  orders. 

I  N.  Y.  Prac—  226. 


3602  JUDGMENTS  AND  ORDERS  APPEALABLE.  §2522 


Art.  I.     General  Rules. 


ART.  I.     GENERAL  RULES. 

§  2517.     Statutory  provisions  making  judgment  or  order  final. 

The  right  to  appeal,  as  given  by  the  Code,  may  be  taken 
away  by  a  special  statutory  provision  applicable  to  a  partic- 
ular action  or  a  particular  special  proceeding.1 

§  2518.    Judgment  or  order  not  entered. 

A  judgment  or  order  which  has  not  been  entered  is  not  ap- 
pealable.2 

§  2519.     Default  judgment  or  order. 

A  judgment  or  order  taken  by  default  is  not  appealable.3 

§  2520.     Consent  judgment  or  order. 

A  judgment  or  order  entered  by  the  consent  of  a  party  can- 
not be  appealed  from  by  him.4 

§  2521.     Void  judgment  or  order. 

A  void  judgment  or  order  is  appealable  notwithstanding 
that  the  judgment  or  order  is  subject  to  collateral  attack  when- 
ever it  is  set  up.5 

§  2522.    Ex  parte  order. 

An  appeal  will  not  lie  from  an  ex  parte  order  but  the  remedy 
is  by  motion  to  set  it  aside  and  then  to  appeal  from  the  order 

i  See  post,  §  2556. 

2  See  post,  §  2598. 

s  See  post,  §  2570,  par.  2. 

4  See  post,  §  2576. 

s  Fitch  v.  Devlin,  15  Barb.  47;  Gormly  v.  Mcintosh,  22  Barb.  271; 
Wands  v.  Robarge,  24  Misc.  273,  53  N.  Y.  Supp.  700;  Catlin  v.  Rundell, 
1  App.  Div.  157,  37  N.  Y.  Supp.  979;  Loeb  v.  Smith,  24  Misc.  22,  52  N.  Y. 
677.  Judgment  or  order,  where  void,  may  be  reversed.  Allison  v.  T.  A. 
Snider  Preserve  Co.,  20  Misc.  367,  45  N.  Y.  Supp.  923. 


2523  JUDGMENTS  AND  ORDERS  APPEALABLE.  3603 


Art.   1.     General   Rules. — Ex   Parte   Order. 


made  on  such  motion.0  But  an  order  made  after  hearing  coun- 
sel in  opposition,  though  on  notice  given  merely  by  making  the 
application,  is  not  ex  parte.7 

However,  the  appellate  division,  on  an  original  application, 
has  power  to  vacate  or  modify,  without  notice,  or  on  such 
notice  as  it  deems  proper,  any  ex  parte  order  in  an  action  or 
special  proceeding  made  by  a  justice  of  the  supreme  court  or 
by  the  court.8  So  the  appellate  division  may  grant  any  order 
or  provisional  remedy  which  has  been  applied  for,  without 
notice  to  the  adverse  party,  and  refused  by  the  supreme  court 
or  a  justice  thereof.9 

§  2523.    Part  of  judgment  or  order. 

An  appeal  may  be  taken  from  a  part  of  a  judgment10  or 
from  a  part  of  an  order.11  provided  the  portion  appealed  from 
i.s  not  so  inseparably  connected  with  other  portions  that  to  re- 
verse as  to  it  would  nullify  the  judgment  or  order  in  respects 
not  appealed  from.12  For  instance,  an  appeal  ordinarily  will 
not  lie  from  the  conditions  on  which  an  order  is  granted,13 
except  where  the  party  is  entitled  to  his  order  without  condi- 

o  Brown  v.  Georgi,  26  Misc.  128,  56  N.  Y.  Supp.  923;  Matter  of  Red- 
dish, 47  App.  Div.  187,  62  N.  Y.  Supp.  261;  Campbell  v.  Brock's  Com- 
mercial Agency,  38  App.  Div.  137,  56  N.  Y.  Supp.  540;  Aldinger  v.  Pugh, 
57  Hun,  181,  10  N.  Y.  Supp.  684;  Matter  of  Dunn,  37  State  Rep.  802,  14 
N.  Y.  Supp.  14.  Ex  parte  order  of  surrogate.  Matter  of  Johnson's  Es- 
tate, 27  Hun,  538.  Ex  parte  order  is  not,  however,  a  default  order. 
Mover  v.  Moyer,  7  App.  Div.  523,  533,  40  N.  Y.  Supp.  258. 

i  People  ex  rel.  Lardner  v.  Carson,  78  Hun,  544,  29  N.  Y.  Supp.  619. 

s,  o  Code  Civ.  Proc.  §  1348. 

io  Rule  applies  also  to  actions  in  equity.  Cromwell  v.  Burr,  9  Daly, 
482.  No  appeal  can  be  taken,  however,  from  a  referee's  determination 
of  only  a  part  of  the  issues.  Applebee  v.  Duke,  37  State  Rep.  446,  13 
N.  Y.  Supp.  929. 

ii  Mclntyre  v.  German  Sav.  Bank,  59  Hun,  536,  20  Civ.  Proc.  R. 
(Browne)  209,  13  N.  Y.  Supp.  674;  Matter  of  New  York,  L.  &  W.  R.  Co., 
98  N.  Y.  447. 

12  Matter  of  Rockwell,  31  State  Rep.  22,  9  N.  Y.  Supp.  696.  Part  of 
judgment  in  action  at  law  for  a  sum  of  money  only  cannot  be  appealed 
from.     Cromwell  v.  Burr,  9  Daly,  482. 

13  Van  Allan  v.  Gordon,  92  Hun,  500,  36  N.  Y.   Supp.  987;    Tribune 


3604  JUDGMENTS  AND  ORDERS  APPEALABLE.  §  2525 

Art.  I.     General  Rules. — Part  of  Judgment  or  Order. 

tions,  as  a  matter  of  right.14  In  other  words,  an  appeal  from 
that  part  of  an  order  which  imposes  conditions  will  be  dis- 
missed where  the  portion  of  the  order  appealed  from  is  so  con- 
nected with  the  rest  of  the  order  that  a  reversal  would  result 
in  the  absolute  denial  of  the  motion,  which  would  be  unauthor- 
ized.15 

Where  joint  wrongdoers  are  joined  as  defendants,  and  the 
action  is  severed  as  to  them  for  the  purposes  of  the  trial,  the 
recovery  of  judgment  against  one  of  them,  where  it  is  not 
shown  to  be  paid  or  satisfied,  does  not  preclude  an  appeal  by 
the  plaintiff  from  so  much  of  the  judgment  as  dismisses  his 
complaint  against  the  other  defendant.10 

§  2524.     Amended  orders. 

Where  an  order  is  corrected  by  adding  a  further  recital  to 
correct  a  deficiency  therein,  the  appeal  should  be  from  the  orig- 
inal order.17 

§  2525.     Order  where  leave  to  move  to  renew  or  vacate  is 
granted. 

An  appeal  cannot  be  taken  from  an  order  after  leave  to  re- 
new the  motion  is  granted,18  nor  where  leave  to  move  to  vacate 
is  reserved  by  the  order.19  In  such  cases  the  order  made  on 
the  new  motion  is  to  be  treated  as  the  final  order  of  the  court, 
and  is  the  only  one  appealable. 

Ass'n  v.  Smith,  40  Super.  Ct.  (8  J.  &  S.)  81;  Havemeyer  v.  Havemeyer, 
44  Super  Ct.   (12  J.  &  S.)  170. 

I*  Wheeler  v.  Tracy,  47  Super.  Ct.  (15  J.  &  S.)  368;  Chapin  v.  Foster, 
101  N.  Y.  1;  O'Brien  v.  Long,  49  Hun,  80,  1  N.  Y.  Supp.  695;  Van  Loan 
v.  Squires,  51  Hun,  360,  4  N.  Y.  Supp.  371. 

is  Matter  of  Rockwell,  31  State  Rep.  22,  9  N.  Y.  Supp.  696. 

io  Hurley  v.  New  York  &  B.  Brewing  Co.,  13  App.  Div.  167,  176,  43 
N.  Y.  Supp.  259. 

i"  Landers  v.  Fisher,  24  Hun,  648. 

is  Robbins  v.  Ferris,  5  Hun,  286. 

io  Wells,  Fargo  &  Co.  v.  Wellsville,  C.  &  P.  C.  R.  Co.,  12  App.  Div.  47, 
42  N.  Y.  Supp.  225. 


8  2528  JUDGMENTS  AND  ORDERS  APPEALABLE.  3605 


Art.   I.     General   Rules. 


§  2526.     Where  only  abstract  questions  involved. 

An  appeal  from  a  judgment  or  order  will  be  dismissed  where 
only  abstract  questions  are  involved.20 

§  2527.    Indirect  appeal. 

The  fact  that  an  interlocutory  judgment  or  intermediate 
order  is  not  directly  appealable  does  not  necessarily  preclude 
a  review  thereof  on  an  appeal  from  the  final  judgment  in  the 
action  or  from  the  final  order  in  a  special  proceeding.21  After 
final  judgment,  an  interlocutory  judgment  or  an  intermediate 
order  can  be  reviewed  only  on  an  appeal  from  the  final  judg- 
ment.22 

§  2528.     Second  appeal. 

An  appeal  from  an  order  does  not  preclude  a  subsequent  ap- 
peal from  the  judgment  entered  in  the  same  action,  but  an  ap- 
peal cannot  be  taken  from  a  judgment  or  order  by  piecemeal, 
i.  e.,  separate  appeals  cannot  be  taken  from  different  parts  of 
a  judgment  or  order.23  A  fortiori,  there  is  no  authority  for 
two  concurrent  appeals  from  the  same  judgment  by  the  same 
party  on  the  same  question.24  But  where,  in  an  action  against 
two  or  more  defendants,  whose  liabilities  are  separate  and  dis- 
tinct, plaintiff  recovers  as  to  part  of  the  defendants  but  is  un- 
successful as  to  the  other  defendants,  the  fact  that  an  affirm- 
ance has  been  had  on  an  appeal  by  the  unsuccessful  defendants 
does  not  preclude  a  subsequent  appeal  by  plaintiff  from  the 

residue.25 

Two  or  more  orders  may  be  appealed  from  together,26  but 
the  records  should  be  separate.27 

20  See  post,  §§  2770,  2781. 

21  See  post,  §  2631. 

22  Bates  v.  Holbrook,  89  App.  Div.  548,  551,  85  N.  Y.  Supp.  673. 

23  Thompson  v.  Taylor,  13  Hun,  201. 

24  Abbey  v.  Wheeler,  170  N.  Y.  122. 

26  Genet  v.  Davenport,  60  N.  Y.  194. 

2c,  Tyler  v.  Simmons,  6  Paige,  127;  Skidmore  v.  Davis,  10  Paige,  316. 

27  See  post,  §  2725. 


•;OUt>  JUDGMENTS  AND  ORDERS  APPEALABLE.  g  2530 

«— — - — i 

Art.   II.     To   Court   of   Appeals. — A.   General   Considerations. 

After  dismissal  of  appeal.     The  dismissal  of  an  appeal 


does  not  ordinarily  preclude  a  second  appeal,28  but  where  an 
appeal  has  been  dismissed  by  the  appellate  division  for  failure 
to  print  and  serve  the  necessary  papers  within  the  time 
prescribed  by  the  rules  of  court,  a  second  appeal  cannot  be 
taken  by  a  part  or  all  of  the  appellants,  without  obtaining 
leave  of  court,  notwithstanding  that  the  time  to  appeal  has  not 
expired.29  A  second  appeal  after  dismissal  of  the  first  with 
costs  will  be  stayed  until  the  costs  of  the  first  are  paid.30 

ART.  II.  TO  COURT  OF  APPEALS. 
(A)  GENERAL  CONSIDERATIONS. 

§  2529.     Historical. 

The  Constitution  of  189-1,  and  the  Code  amendments  enacted 
in  pursuance  thereof,  made  considerable  changes  in  the  law  as 
to  what  judgments  and  orders  are  appealable  to  the  court  of 
appeals.  Prior  thereto  nearly  all  orders  were  appealable  as 
of  right,  where  not  discretionary,  but  in  certain  actions  the 
right  to  appeal  from  judgments  was  dependent  on  the  amount 
involved.  The  Constitution  and  Code  amendments  changed 
all  this  by  limiting  the  right  to  appeal  from  orders  as  of  right 
to  orders  granting  a  new  trial  on  exceptions,  and  by  striking 
out  the  limitation  as  to  the  amount  involved.  The  Constitution 
now  provides  that  "the  legislature  may  further  restrict  the 
jurisdiction  of  the  court  of  appeals  and  the  right  of  appeal 
thereto,  but  the  right  of  appeal  shall  not  depend  on  the  amount 
involved."  31 

§  2530.     Code  provision. 

An  appeal  may  be  taken  to  the  court  of  appeals  in  a  case 
where  that  court  has  jurisdiction,  as  prescribed  in  sections  190 

28  French  v.  Row,  77  Hun,  380,  28  N.  Y.  Supp.  849;  Culliford  v.  Gadd, 
135  N.  Y.  632. 

29  Sperling  v.  Boll,  26  App.  Div.  64,  50  N.  Y.  Supp.  209. 

30  Dresser  v.  Brooks,  1  Abb.  Dec.  555. 
3i  Const,  art.  6,  §  9. 


2530     JUDGMENTS  AND  ORDERS  APPEALABLE.      3607 


Art.   II.     To   Court   of   Appeals. — A.  General   Considerations. 


and  191  of  the  Code.32  Sections  190  and  191  of  the  Code,  in  so 
far  as  they  relate  to  the  right  of  appeal,  may  be  tabulated  as 
follows: 

1.  Appeals  of  right,  sub-   f  1.  Final  judgment. 

jec    oexcep  2.  Final  order  in  a  special  proceeding, 

in  section    191   of  the  r         v 

Code.  |  3.  Order  granting  new  trial  on  exceptions. 

f  1.  From  judgment  or  order,  in  any  case,  where 
questions  are  certified  as  allowed  by  Code  Civ. 
Proc.  §  190,  subd.  2. 

2.  From  judgment  in  actions  commenced  in  court 

2.  Appeals  by  leave  of  ap-  J       other  than  supreme,  county   or  surrogate's 
pellate  division.  '        court  or  court  of  claims  (Code  Civ.  Proc.  §  191, 

subd.  1). 

3.  From  judgment  in  particular  actions  where 
appellate  division  affirms  unanimously  (Code 
Civ.  Proc.  §  191,  subd.  2). 

3.  Appeals    bv    leave    of   f  ,  .  .         ,  , 

.  V        *  c  In  cases  under  subdivision  three,  supra,  where 

nidge  of  court  of  ap-  -i  „  A    ,.  .  .  ,  ,,  , 

J     °  !       appellate  division  refuses  to  allow  appeal. 


Subject  to  the  exceptions  set  forth  in  section  191  of  the  Code, 
''appeals  may  be  taken  as  of  right"  to  the  court  of  appeals 
"from  judgments  or  orders  finally  determining  actions  or  spe- 
cial proceedings. ' ' 33  There  can  be  no  such  thing  as  an  order 
finally  determining  an  action,  and  hence  the  word  ' '  order ' '  as 
nsed  refers  only  to  an  order  finally  determining  a  special  pro- 
ceeding. Hence,  no  order  in  an  "action"  is  appealable  as  of 
right  to  the  court  of  appeals  except  an  order  granting  a  new 
trial  on  exceptions.34 

32  Code  Civ.  Proc.  §  1324. 

33  Code  Civ.  Proc.  §  190. 

34  Van  Arsdale  v.  King,  155  N.  Y.  325.  "There  may  be,  in  practice  or 
in  the  progress  of  the  cause,  such  a  thing  as  an  order  which  may  or  may 
not  have  the  effect  of  ending  the  case  in  the  sense  that  one  party  or  the 
other  can  go  no  farther,  but  such  an  order  determines  no  controversy 
or  any  action  in  the  sense  contemplated  by  the  Constitution  and  the 
Code."    Id. 


:V,,i>  JUDGMENTS  AND  ORDERS  APPEALABLE.  §  2532 

Art.   II.     To   Court   of  Appeals. — A.  General  Considerations. 

§  2531.     Right  as  limited  by  statute. 

When  a  party  seeks  to  have  a  judgment  or  order  reviewed 
in  the  court  of  appeals,  he  must  be  able  to  point  to  some  statute 
giving  him  the  right  and  conferring  the  jurisdiction.35  Where 
the  right  of  appeal  is  given  in  express  terms,  the  burden  is  on 
the  respondent  to  show  that  the  appeal  is  within  any  of  the  lim- 
itations of  the  statute  contained  in  section  191  of  the  Code.38 

That  a  statute  may  preclude  an  appeal  to  the  court  of  ap- 
peals from  a  judgment  or  order  otherwise  appealable  will  be 
noticed  in  another  connection.37 

Restriction  of  right.     The  legislature  may  further  deny 

or  restrict  the  right  of  appeal  to  the  court  of  appeals  in  any 
class  or  classes  of  actions,  in  its  discretion,  the  only  restriction 
on  the  legislative  power  being  that  the  right  shall  not  be  made 
to  depend  on  the  amount  involved.38 

Enlargement  of  right.     The  legislature  may  enlarge  the 

jurisdiction  of  the  court  of  appeals.39 

§  2532.     "Actual  determinations"  of  appellate  division. 

The  Code  limitation  of  the  jurisdiction  of  the  court  of  ap- 
peals to  the  review  of  "actual  determinations"  of  the  appellate 
division,40  precludes  the  review  of  a  judgment  or  order  entered 
by  consent,41  or  a  judgment  entered  in  the  trial  court  pro 
forma  pursuant  to  stipulation,  merely  to  bring  an  appeal  to  the 
court  of  appeals,42  but  does  not  preclude  an  appeal  where  the 
respondent  makes  default  in  the  appellate  division  where  such 
court  nevertheless  considers  the  merits  and  affirms  the  trial 

33  Bryant  v.  Thompson,  128  N.  Y.  426,  434;  Croveno  v.  Atlantic  Ave. 
R.  Co.,  150  N.  Y.  225,  228;  Matter  of  Jones,  181  N.  Y.  389. 

36Laidlaw  v.  Sage,  158  N.  Y.  73,  87;  Kaplan  v.  New  York  Biscuit  Co., 
151  N.  Y.  171. 

37  See  post,  §  2556. 

38  Sciolina  v.  Erie  Preserving  Co.,  151  N.  Y.  50,  52. 

so  People  ex  rel.  Commissioners  of  Charities  v.  Cullen,  153  N.  Y.  629. 

40  Code  Civ.  Proc.  §  190. 

4i  Peterson  v.  Swan,  119  N.  Y.  662. 

42  Gridley  v.  Daggett,  6  How.  Pr.  280. 


§2535 


JUDGMENTS  AND  ORDERS  APPEALABLE.  3609 


Art.   II.     To   Court  of  Appeals. — B.  As  Matter   of  Right. 

court.43  This  rule  has  been  also  applied  by  holding  that  where 
a  judgment  entered  on  an  order  of  the  appellate  division  does 
not  conform  to  that  order,  the  proper  remedy  is  by  motion  in 
the  court  below  to  correct  the  judgment  and  not  by  appeal  to 
the  court  of  appeals  in  the  first  instance.44 

§  2533.     Consent  as  conferring  jurisdiction. 

If  a  judgment  or  order  is  not  appealable  to  the  court  of  ap- 
peals as  of  right,  and  leave  to  appeal  is  not  obtained,  jurisdic- 
tion cannot  be  conferred  by  a  stipulation  of  the  parties.44a 

§  2534.     Whether  judgment  or  order  must  be  appealed  from. 

If  the  appellate  division  affirms,  the  appeal  must  be  from  the 
judgment  entered  on  the  order  of  affirmance  and  not  from  the 
order  of  affirmance ; 43  but  if  the  appellate  division  reverses 
and  grants  a  new  trialr  the  appeal  must  be  from  the  order  and 
not  from  the  judgment  entered  thereon.40  For  instance,  an  ap- 
peal cannot  be  taken  from  an  order  of  the  appellate  division 
reversing  an  order  granting  a  new  trial  because  of  newly-dis- 
covered evidence,  and  affirming  the  judgment  of  the  trial 
court,  but  the  appeal  must  be  from  the  judgment  entered  on 
such  order.47  So  a  question  certified  by  the  appellate  division 
cannot  be  considered  where  the  appeal  is  from  the  order  of 
affirmance  of  the  appellate  division  instead  of  from  the  judg- 
ment entered  on  such  order.48 

(B)  AS  MATTER  OF  RIGHT. 

§  2535.     Enumeration. 

Subject  to  the  exceptions  contained  in  section  191  of  the 
Code,  an  appeal  may  be  taken  to  the  court  of  appeals,  as  a 
matter  of  right,  in  only  the  three  following  cases,  viz:  (1)  ap- 

48  Seneca  Nation  of  Indians  v.  Knight,  19  N.  Y.  587. 

<"  Hackett  v.  Belden,  47  N.  Y.  624. 

4*a  Hoes  v.  Edison  General  Electric  Co.,  150  N.  Y.  87. 

45  See  post,  §  2536. 

46-48  Code  Civ.  Proc.  §  1318. 


3610  JUDGMENTS  AND  ORDERS  APPEALABLE.  §  2536 

Art.   II.     To   Court  of  Appeals. — B.  As  Matter   of   Ri§ht. 

pea]  from  a  iinal  judgment;  (2)  appeal  from  a  final  order  in  a 
special  proceeding;  and  (3)  appeal  from  an  order  granting  a 
new  trial  on  exceptions  where  a  stipulation  for  judgment  abso- 
lute in  case  of  affirmance  is  e'iven.49 


§  2536.     Final  judgments. 

Subject  to  the  exceptions  contained  in  section  191  of  the 
Code,  an  appeal  may  be  taken  to  the  court  of  appeals,  as  a 
matter  of  right,  from  a  final  judgment  in  an  action.50  In  a  pre- 
ceding volume,  the  difference  between  a  final  and  an  interlocu- 
tory judgment  has  been  considered.51  Where  a  judgment  fully 
and  completely  disposes  of  the  substantial  rights  of  the  parties 
at  issue  under  the  pleadings,  and  by  the  force  of  its  own  pro- 
visions may  conclude  the  appellant  without  the  entry  of  a 
further  judgment,  it  must  be  deemed  a  final  judgment,  although 
in  a  certain  contingency  dependent  on  the  action  of  the  appel- 
lant, it  provides  for  the  taking  and  stating  of  an  account  before 
a  referee,  and  the  payment  of  the  amount  found  due  as  a  condi- 
tion precedent  to  the  enjoyment  of  certain  rights  accorded  him 
therein.52  That  a  judgment  has  been  called,  during  the  litiga- 
tion, an  interlocutory  one,  is  not  absolutely  controlling  as  to  its 
nature.53 

A  judgment  of  the  appellate  division  reversing  an  interlocu- 
tory judgment  overruling  a  demurrer  to  the  complaint  and 
sustaining  such  demurrer,  and  directing  a  final  judgment  un- 
less the  plaintiff  amend  within  a  specified  time,  does  not,  when 
perfected  by  the  entry  of  a  final  judgment  dismissing  the  com- 
plaint on  the  failure  to  amend,  become  a  final  determination  so 
as  to  be  appealable  to  the  court  of  appeals.54 

49  Const,  art.  6,  §  9;  Code  Civ.  Proc.  §  190. 
so  Code  Civ.  Proc.  §  190,  subd.  1. 
5i  Vol.   3.   pp.   2752-2754. 

52  Moulton  v.  Cornish,  138  N.  Y.  133,  147. 

53  Breed  v.  Ruoff,  173  N.  Y.  340,  342. 

5-4  Abbey  v.  Wheeler,  170  N.  Y.  122,  which  also  held  that  an  appeal 
from  the  judgment  of  the  appellate  division  which  affirmed  the  final 
judgment  dismissing  the  complaint  was  proper. 


§  2536  JUDGMENTS  AND  ORDERS  APPEALABLE.  3611 

Art.   II.     To   Court   of  Appeals. — B.  As  Matter   of   Right. 

A  judgment  entered  on  the  report  of  a  referee,  directing  a 
final  accounting  of  the  affairs  of  a  dissolved  corporation  by 
the  trustees  thereof  and  for  such  sums  as  may  be  found  due  by 
them  from  the  sale  of  goods  to  any  one  or  more  of  themselves, 
and  for  sums  improperly  paid  to  them  for  services  in  the  per- 
formance of  their  trust,  and  that  the  plaintiff  have  judgment 
with  costs,  is  not  final,  but  interlocutory,  since  something  re- 
mains to  be  done  in  order  to  determine  the  liability  of  the  de- 
fendants.55 In  the  case  last  cited,  it  was  urged  that  inasmuch 
as  the  judgment  contained  a  provision  that  the  plaintiff  re- 
cover the  costs,  which  were  taxed,  and  have  execution  therefor, 
the  judgment  for  costs  was  final  and  stamped  the  case  with  the 
character  of  a  final  judgment.  The  court,  in  answering  such 
contention,  speaks  as  follows:  "Nearly  all  interlocutory 
judgments  are  substantially  final  in  many  respects.  That  is 
to  say,  certain  things  are  decided  that  must  ultimately  prevail 
upon  the  entry  of  final  judgment,  so  that  the  mere  fact  that  in 
the  referee's  report  some  things  are  final  and  other  things  are 
merely  interlocutory  does  not  change  the  character  of  the 
judgment  and  make  it  final  in  the  sense  that  this  court  has 
power  to  review  it." 

A  judgment  which  decrees  that  two  of  several  defendants 
are  jointly  and  severally  indebted  to  a  decedent's  estate  in  a 
certain  sum  and  that  judgment  be  docketed  therefor,  appoints 
a  receiver  to  collect  such  sum  by  suit  or  otherwise  and  to  de- 
posit and  hold  the  same  subject  to  the  further  order  of  the 
court,  and  provides  that  all  parties  to  the  action  interested  in 
the  estate  may  apply  for  final  judgment  on  the  report  of  the 
receiver  and  upon  further  proof  as  they  may  be  advised,  is  in- 
terlocutory. 

A  judgment  in  a  foreclosure  suit  brought  by  the  receiver  of 
a  building  and  loan  association,  which  orders  the  foreclosure 
and  sale  to  be  postponed  until  the  sum  due  defendants  is  finally 
ascertained  on  the  accounting  of  the  receiver  and  that  a  judg- 
ment be  entered  for  the  ascertainment  of  that  amount  as  soon 

ssOsborn  v.  Cardeza,  180  N.  Y.  69.  Compare,  as  contra,  Bergen  v. 
Carman,  79  N.  Y.  146,  151. 


3612  JUDGMENTS  AND  ORDERS  APPEALABLE.  §2537 

Art.    II.     To   Court   of  Appeals. — B.  As   Matter   of   Right. 

as  the  assets  of  the  association  are  sufficiently  liquidated  for 
the  purpose,  is  a  final  judgment.50"''7 

One  who  has  appealed  on  the  theory  that  a  judgment  was 
final  cannot  thereafter  deny  the  finality  thereof.'-'8 

Appeal  from  "order"  of  appellate  division.    The  appeal 

to  the  court  of  appeals  must  be  from  the  judgment  entered  on 
the  order  of  the  appellate  division  and  cannot  be  from  the  order 
of  the  appellate  division.09  This  applies  equally  well  whether 
the  order  is  one  of  affirmance  70  or  one  of  reversal  without  grant- 
ing a  new  trial,71  or  one  of  dismissal.  No  appeal  can  be  taken  to 
the  court  of  appeals  from  an  "order"  of  the  appellate  division 
dismissing  an  appeal  from  the  judgment  below,  but  the  proper 
practice  is  to  enter  a  judgment  of  dismissal  upon  the  order  and 
then  appeal  from  such  judgment.72  But  if  there  is  a  reversal  of 
the  judgment  and  a  new  trial  granted,  the  appeal  should  be 
Irom  the  order  granting  a  new  trial  which  authorizes  a  review 
of  the  judgment  of  reversal.  In  such  a  case,  the  judgment  of 
reversal  is  not  appealable."  A  reversal  with  an  award  of  a 
new  trial  is  not  a  "final"  "judgment"  so  as  to  be  appealable 
as  a  judgment.74 

§  2537.     Interlocutory  judgments. 

An  appeal  cannot  be  taken  to  the  court  of  appeals,  as  of 
right,  from  an  interlocutory  judgment,75  since  it  is  the  policy 

56-67  Breed  v.  Ruoff,  173  N.  Y.  340. 

68  Sperry  v.  Hellman,  2  Misc.  414,  21  N.  Y.  Supp.  1014. 

69  Croveno  v.  Atlantic  Ave.  R.  Co.,  150  N.  Y.  225,  228;  Bieling  v.  City 
of  Brooklyn,  120  N.  Y.  98. 

to  Derleth  v.  De  Graff,  104  N.  Y.  661;  Kilmer  v.  Bradley,  80  N.  Y.  630. 
Question  certified  cannot  be  considered  where  appeal  is  from  order  of 
affirmance  instead  of  from  the  judgment  entered  on  such  order.  Reiss 
v.  Town  of  Pelham,  170  N.  Y.  54,  58.  So  an  appeal  cannot  be  taken  from 
an  order  of  the  appellate  division  reversing  an  order  granting  a  new 
trial  and  affirming  the  judgment  but  the  appeal  must  be  from  the  judg- 
ment entered  on  such  order.     Id. 

7i  Rust  v.  Hauselt,  69  N.  Y.  485;  Mehl  v.  Vonderwulbeke,  46  N.  Y.  539. 

72  Stevens  v.  Central  Nat.  Bank,  162  N.  Y.  253. 

73  Code  Civ.  Proc.  §  1318;  Pharis  v.  Gere,  112  N.  Y.  408. 
7*Duane  v.  Northern  R.  Co.,  3  N.  Y.  (3  Comst.)  545. 

75  Victory  v.  Blood,  93  N.  Y.  650;  Tilton  v.  Vail,  117  N.  Y.  520;  Walker 
v.  Spencer,  86  N.  Y.  162,  167;  Beebe  v.  Griffing,  6  N.  Y.  (2  Seld.)  465. 


§  253S  JUDGMENTS  AND  ORDERS  APPEALABLE.  3613 

Art.    II.      To    Court   of  Appeals. — B.   As   Matter   of   Right. 

of  the  Code  to  allow  but  one  appeal  to  the  court  of  appeals  in 
the  same  cause.  But  while  an  interlocutory  judgment  is  not 
appealable  to  the  court  of  appeals,  yet  the  party  aggrieved 
may,  after  the  entry  of  the  judgment,  move  before  the  ap- 
pellate division  for  a  new  trial  on  exceptions,  and  then  appeal 
from  the  order  if  it  refuses  a  new  trial.76  And  where  final  judg- 
ment is  rendered  in  the  court  below,  after  the  affirmance  of  an 
interlocutory  judgment  by  the  appellate  division,  or  after  the 
refusal  by  the  appellate  division  of  a  new  trial  either  on  an 
application  to  it  in  the  first  instance  or  on  an  appeal  from  an 
order  of  the  special  term  or  of  the  judge  before  whom  the 
issues  or  questions  of  fact  were  tried  by  a  jury,  the  party  ag- 
grieved may  appeal  directly  from  the  final  judgment  to  the 
court  of  appeals,  notwithstanding  that  it  was  rendered  at  a 
special  term  or  at  a  trial  term  or  pursuant  to  the  directions 
contained  in  a  referee's  report.77  But  such  an  appeal  brings 
up  for  review  only  the  determination  of  the  appellate  division 
affirming  the  interlocutory  judgment  or  refusing  a  new  trial.78 
Where  final  judgment  is  entered  in  the  trial  court  after  the 
affirmance  by  the  appellate  division  of  an  interlocutory  judg- 
ment, or  after  a  refusal  by  the  appellate  division  of  a  new  trial 
on  an  original  application  or  on  appeal  from  an  order  made  on 
a  motion  for  a  new  trial,  and  an  appeal  is  taken  to  the  appel- 
late division  from  the  final  judgment,  and  thereafter  an  appeal 
from  the  determination  of  the  appellate  division  on  the  appeal 
from  the  final  judgment  is  taken  to  the  court  of  appeals,  the 
determination  of  the  appellate  division  affirming  the  interlocu- 
tory judgment  or  refusing  the  new  trial  may  be  brought  up  for 
review  by  the  appellant  by  specifying  it  in  the  notice  of  appeal 
or  by  the  respondent  by  taking   a   cross-appeal   therefrom.79 

§  2538.     Final  order  in  special  proceedings. 

An  appeal  may  be  taken  as  of  right  from  a  final  order  in  a 

™  Raynor  v.  Raynor,  94  N.  Y.  248. 

77  Code  Civ.  Proc.  §  13.16.     See,  also,  Raynor  v.  Raynor,  94  N.  Y.  248; 
Weeks  v.  Cornwell,  21  Wkly.  Dig.  208. 

78  Code  Civ.  Proc.  §  1336. 

78  Code  Civ.  Proc.  §  1350,  in  substance.     Cross-appeal  by  respondent 


;5(U4  JUDGMENTS  AND  ORDERS  APPEALABLE.  §  2538 

Art.   II.     To   Court  of  Appeals. — B.  As   Matter   of   Right. 

special  proceeding,80  except  where  the  special  proceeding  was 
commenced  in  a  court  other  than  the  supreme  court,  the  court 
of  claims,  a  county  court,  or  a  surrogate's  court,81  or  where 
the  statute  governing-  the  special  proceeding  expressly  restricts 
an  appeal  to  the  court  of  appeals.82  In  the  former  case,  an  ap- 
peal is  not  permissible  unless  leave  to  appeal  is  obtained,  while 
in  the  latter  case  an  appeal  does  not  lie  even  by  leave  of  court. 

What  is  a  special  proceeding.     The  first  question  which 

arises  is  as  to  what  is  a  special  proceeding.  This  question  has 
been  considered  in  detail  in  a  preceding  volume  S3  and  will  not 
be  further  noticed  except  by  digesting  the  late  cases  in  the 
note  below. S4 

is  proper  though  his  time  to  take  an  original  appeal  therefrom  has  ex- 
pired.   Id. 

so  Code  Civ.  Proc.  §  190,  subd.  1. 

si  Code  Civ.  Proc.  §  191,  subd.  1.  In  such  a  case,  leave  to  appeal  must 
be  obtained. 

S2  People  ex  rel.  Feeny  v.  Richmond  County  Canvassers,  156  N.  Y.  36, 
48,  which  held  an  order  in  an  election  contest  was  appealable.  If  stat- 
ute makes  decision  of  appellate  division  final,  no  appeal  lies  to  the  court 
of  appeals.    Matter  of  Delaware  &  Hudson  Canal  Co.,  69  N.  Y.  209. 

83  Volume  1,  pp.  12-18. 

?■*  Proceedings  under  section  66  of  the  Code  to  determine  and  enforce 
the  lien  of  an  attorney  are  special  proceedings.  Matter  of  King,  168  N. 
Y.  53.  So  is  an  application  to  compel  a  purchaser  at  a  judicial  sale  to 
take  title  and  that  of  a  purchaser  to  be  relieved  from  his  bid.  Parish 
v.  Parish,  175  N.  Y.  181.  So  are  proceedings  under  section  915  of  the 
Code  relating  to  obtaining  testimony  for  use  in  another  state.  Mat- 
ter of  Strong,  177  N.  Y.  400.  So  are  proceedings  by  taxpayers  under 
section  three  of  the  General  Municipal  Law  to  investigate  the  financial 
affairs  of  a  village.  Matter  of  Taxpayers  &  Freeholders  of  the  Village 
of  Plattsburgh,  157  N.  Y.  78.  So  are  proceedings  for  judicial  settlement 
of  executor's  accounts.  Matter  of  Small,  158  N.  Y.  128;  Matter  of  Pren- 
tice, 160  N.  Y.-569;  Matter  of  Regan,  167  N.  Y.  338.  So  are  election  con- 
test proceedings.  People  ex  rel.  Feeny  v.  Board  of  Canvassers,  156  N. 
Y.  36.  So  are  procedings  under  the  General  Assignment  Act.  Matter  of 
Talmage,  160  N.  Y.  512.  Condemnation  proceedings  are  special  pro- 
ceedings. Matter  of  Southern  Boulevard  R.  Co.,  128  N.  Y.  93.  Semble, 
a  proceeding  instituted  in  pursuance  of  the  provisions  of  the  judgment 
in  an  action  to  sequester  the  income  of  a  trust  fund  is  a  special  pro- 
ceeding. Wetmore  v.  Wetmore,  162  N.  Y.  503,  508.  Proceedings  to  as- 
sess the  damages  suffered  by  reason  of  an  injunction  are  not  special 
proceedings.    Keator  v.  Dalton,  171  N.  Y.  650. 


§  2538  JUDGMENTS  AND  ORDERS  APPEALABLE.  3615 

Art.   II.     To   Court  of  Appeals. — B.  As  Matter   of   Right. 

What  is  the  "final"  order.     The  second  question  is  as  to 


what  is  a  "final"  order  in  a  special  proceeding.  The  term  has 
not  been  judicially  defined.  The  final  order  corresponds  to  the 
final  judgment  in  an  action.  It  is  not  necessarily  the  last  order 
in  the  proceeding  though  there  cannot  be  more  than  one  final 
order.  The  final  order  may  be  defined  as  the  order  in  the  pro- 
ceeding which  judicially  determines  the  merits  of  the  proceed- 
ing. A  special  term  order  which  modifies  and  corrects  a  final 
order  in  a  special  proceeding  thereby  becomes  the  "final" 
order  in  that  proceeding,  so  that  an  order  of  the  appellate  di- 
vision reversing  it  is  appealable.85  An  order  in  a  proceeding 
instituted  by  a  property  owner  to  review  an  assessment  levied 
for  a  local  improvement,  which  sets  aside  the  assessment  not 
only  as  to  him  but  as  to  all  the  other  property  owners,  is  a  final 
order.86  An  order  settling  an  executor's  account  may  be  a 
final  order  though  the  accounting  is  an  intermediate  one  in  the 
sense  that  the  estate  is  not  finally  distributed.87  The  following 
orders  have  been  held  to  be  not  final :  An  order  denying  a 
motion  to  set  aside  a  decree,  or  to  open  it,  for  the  purpose  of 
correcting  errors  or  to  compel  a  further  accounting ; 88  an  order 
adjudging  a  party  guilty  of  contempt  in  disobeying  a  judg- 
ment, and  imposing  a  fine,  which  also  provides  for  a  reference 
to  take  proof  and  report  as  to  the  damages  sustained  by  plaint- 
iff by  the  acts  of  defendant ; 89  an  order  directing  the  resump- 
tion of  certain  payments  by  the  guardian  of  an  infant's 
property  to  the  guardian  of  his  person;90  an  order  directing  a 
witness  to  answer  specified  questions,  on  an  examination  under 
a  commission  for  use  as  evidence  in  another  state." 

An  order  of  the  appellate  division  which  takes  the  place  of  a 
final  order  in  a  special  proceeding  is  such  a  final  order.02  An 
order  reversing  an  order  is  final  notwithstanding  the  matter 

85  Matter  of  Board  of  Education,  169  N.  Y.  45G,  460. 

se  Matter  of  Munn,  165  N.  Y.  149,  158. 

87  Matter  of  Prentice,  160  N.  Y.  569. 

ss  Matter  of  Small,  158  N.  Y.  128. 

sa  Ray  v.  New  York  Bay  Extension  R.  Co.,  155  N.  Y.  102. 

oo  Matter  of  White,  95  App.  Div.  104,  88  N.  Y.  Supp.  564. 

«i  Matter  of  Strong,  177  N.  Y.  400. 

»2  Matter  of  Hulbert  Bros.  &  Co.,  160  N.  Y.  9,  15. 


3616  JUDGMENTS  AND  ORDERS  APPEALABLE.  §  2538 

Art.    II.     To   Court   of  Appeals. — B.  As   Matter   of   Right. 

is  remanded  for  further  proceedings,  where  the  statute  author- 
izes no  further  proceedings.93  An  order  of  the  appellate  di- 
vision punishing  a  witness  for  contempt  in  refusing  to  answer 
questions,  on  an  examination  to  obtain  a  discovery  concerning 
property  belonging  to  the  estate  of  a  deceased  person,  is  a  final 
order.04  So  is  an  order  reversing  an  order  of  the  special  term 
granting  an  application  to  compel  the  delivery  of  books  and 
papers  to  a  public  officer,  and  which  denies  the  application.95 
Likewise,  an  order  reversing  an  order  appointing  a  referee  to 
ascertain  and  report  the  value  of  the  petitioner's  services  in  a 
proceeding  to  enforce  an  attorney's  lien  and  which  "denies 
the  application"  is  a  final  order.96  But  an  order  reversing  an 
order  denying  a  motion  to  compel  an  executor  to  account,  and 
remitting  the  proceedings  to  the  surrogate  for  an  accounting, 
is  not  a  final  order,97  nor  is  an  order  of  the  appellate  division 
reversing  an  order  quashing  a  writ  of  certiorari  but  reinstat- 
ing the  writ  and  remitting  the  proceedings  to  the  lower  court 
for  a  determination  on  the  merits.98 

An  order  in  condemnation  proceedings  which  merely  re- 
verses the  former,  and  orders  a  new  appraisal  is  not  a  "final" 
order  in  a  special  proceeding,99  nor  is  an  order  affirming  an  or- 
der appointing  commissioners  to  ascertain  the  damages  accru- 
ing from  the  change  of  the  grade  of  a  street.100  But  while  an  or- 
der reversing  an  order  of  the  special  term  vacating  a  final  or- 
der and  judgment  in  condemnation  proceedings  is  not  a  final 
order,101  yet  where  the  appellate  division  not  only  reverses  the 
order  and  judgment  of  condemnation  but  also  dismisses  the 
proceeding,  the  order  entered  on  the  decision  is  final.102 

»3  People  ex  rel.  New  York  &  H.  R.  R.  R.  Co.  v.  Commissioners  of 
Taxes,  101  N.  Y.  322. 

o-*  Matter  of  King  v.  Ashley,  179  N.  Y.  28*. 
as  Matter  of  Brenner,  170  N.  Y.  185. 
»fl  Matter  of  King,  168  N.  Y.  5?,,  60. 

97  Matter  of  Latz,  110  N.  Y.  661. 

98  People  ex  rel.  Bronx  Gas  &  Elec.  Co.  v.  Baker,  155  N.  Y.  308. 
oo  Matter  of  Southern  Boulevard  R.  Co.,  128  N.  Y.  93,  97. 

ioo  Matter  of  Grab,  157  N.  Y.  69. 

ioi  City  of  Johnstown  v.  Wade,  157  N.  Y.  50. 

102  Village  of  Champlain  v.  McCrea,  165  N.  Y.  264,  269. 


§  2539  JUDGMENTS  AND  ORDERS  APPEALABLE.  3617 

Art.   II.     To   Court  of  Appeals. — B.  As  Matter   of   Right. 

An  order  affirming,  with  modifications  as  to  the  priority  of 
payment  of  claims  and  as  to  commissions  and  costs,  an  order 
confirming  the  report  of  a  referee  in  a  proceeding  for  the  set- 
tlement of  an  assignee's  account,  allowing  the  account,  adjust- 
ing the  claims  of  creditors  and  directing  payment  thereupon, 
relieving  the  assignee  from  liability  for  all  matters  included 
in  his  account,  and  releasing  his  sureties  to  that  extent,  is  a 
final  order,  notwithstanding  the  proceeding  was  intermediate 
in  the  sense  that  the  assigned  estate  was  not  then  ready  for 
final  distribution.103 

An  order  requiring  the  board  of  railroad  commissioners  to 
issue  a  certificate  of  public  convenience  to  petitioner  is  a  final 
order  in  a  special  proceeding  so  as  to  be  appealable  as  of 
right.104 

§  2539.     Order  granting  new  trial  on  exceptions. 

An  appeal  may  be  taken  as  of  right  from  an  order  "grant- 
ing" a  new  trial  "on  exceptions,"  where  the  appellant  stipu- 
lates that  on  affirmance  judgment  absolute  shall  be  rendered 
against  him,105  subject  to  the  limitations  contained  in  section 
191  of  the  Code.  Note,  however,  that  the  appeal  as  of  right 
can  only  be  taken  from  an  order  "granting"  a  new  trial,  and 
then  only  where  the  new  trial  is  granted  ' '  on  exceptions. ' ' 106 
An  order  granting  a  new  trial  on  the  facts,  "in  a  case  tried 
before  a  jury,"  is  not  an  order  granting  a  new  trial  on  excep- 
tions.107 

The  requiring  a  stipulation  for  judgment  absolute  was  in- 

los  Matter  of  Talmage,  160  N.  Y.  512,  515. 

104  Matter  of  Wood,  181  N.  Y.  93. 

io5  Code  Civ.  Proc.  §  190,  subd.  1.  Judgment  to  be  entered  on  stipula- 
tion, on  affirmance,  see  post,  §  2833. 

iog  Allen  v.  Corn  Exchange  Bank,  181  N.  Y.  278.  It  follows  that  where 
the  appellate  division,  on  an  appeal  from  a  judgment  and  from  an  order 
denying  a  new  trial,  reverses  and  grants  a  new  trial  without  stating 
in  the  order  of  reversal  whether  the  reversal  is  on  the  law  or  on  the 
facts,  no  appeal  as  of  right  lies  to  the  court  of  appeals.  Henavie  v.  New 
York  Cent.  &  H.  R.  R.  Co.,  154  N.  Y.  278. 

107  Allen  v.  Corn  Exchange  Bank,  181  N.  Y.  278. 

N.  Y.  Prac—  227 


3618  JUDGMENTS  AND  ORDERS  APPEALABLE.  §  2539 

Art.  II.     To  Court  of  Appeals. — B.  As  Matter  of  Right. 

tended  to  meet  that  class  of  cases  in  which  a  new  trial  can 
only  be  a  useless  expense  because  the  whole  merits  are  pre- 
sented and  disposed  of  by  the  order  awarding  a  new  trial.108 
It  is  not  advisable  to  give  the  stipulation,  so  as  to  be  entitled  to 
appeal,  unless  the  objections  and  exceptions  taken  at  the  trial 
cannot  be  obviated  on  a  second  trial,109  since,  where  a  stipula- 
tion is  given,  the  appellant  takes  the  risk  of  every  exception 
appearing  on  the  record,  and  the  respondent  may  sustain  the 
order  by  showing  any  legal  error  on  the  part  of  the  trial 
court.110 

There  is  authority  for  the  proposition  that  an  appeal  from 
an  order  granting  a  new  trial  on  exceptions  is  not  a  matter 
of  right  in  every  case  where  the  stipulation  is  given.  Such 
holding  is  based  on  the  ground  that  inasmuch  as  a  stipulation 
is  always  necessary,  it  follows  that  no  appeal  lies  from  such 
an  order  where  the  stipulation,  if  given,  would  be  ineffective.111 

To  obtain  a  review  of  an  order  in  an  action  other  than  an 
order  granting  a  new  trial  on  exceptions,  or  a  nonfinal  order 
in  a  special  proceeding,  the  proper  practice  is  to  obtain  leave 
as  provided  for  by  Code  Civ.  Proc.  §  190,  subd.  2,  which  pro- 
vides that  "appeals  may  also  be  taken  from  determinations  of 
the  appellate  division  of  the  supreme  court  in  any  department, 
where  the  appellate  division  allows  the  same,  and  certifies  that 
one  or  more  questions  of  law  have  arisen  which,  in  its  opinion, 
ought  to  be  reviewed  by  the  court  of  appeals,  in  which  case  the 
appeal  brings  up  for  review  the  question  or  questions  so  certi- 
fied, and  no  other ;  and  the  court  of  appeals  shall  certify  to  the 
appellate  division  its  determination  on  such  questions."  112-115 

los  Lanman  v.  Lewiston  R.  Co.,  18  N.  Y.  493. 

ioo  See  Cobb  v.  Hatfield,  46  N.  Y.  533,  538. 

no  Foster  v.  Bookwalter,  152  N.  Y.  166,  168,  and  cases  cited. 

in  So  held  in  quo  warranto  suit  to  oust  defendant  from  office' .and  to 
establish  the  rights  of  the  relator.  People  ex  rel.  Judson  v.  Thacher, 
55  N.  Y.  525,  537. 

112-115  Order  affirming  order  denying  motion  to  set  aside  an  assess- 
ment of  damages  after  remittitur  from  court  of  appeals  is  reviewable 
where  leave  to  appeal  is  granted  and  it  is  certified  that  questions  of  law 
have  arisen  which  ought  to  be  reviewed.  City  Trust,  Safe  Deposit  & 
Surety  Co.  v.  American  Brewing  Co.,  182  N.  Y.  285. 


2540  JUDGMENTS  AND  ORDERS  APPEALABLE.  3619 


Art.   II.     To   Court  of  Appeals. — C.  By  Leave   of  Court. 


Necessity  for  stipulation.  If  the  stipulation  for  judg- 
ment absolute  is  not  given,  the  appeal  from  the  order  should  be 
dismissed.116  The  stipulation  is  necessary  though  the  appellate 
division  has  granted  leave  to  appeal  and  certified  a  question  of 
Jaw  for  review.117  It  has  been  held,  however,  that  when  an 
appeal  is  taken  from  a  provision  inserted  in  an  order  granting 
a  new  trial  which  the  court  had  no  authority  to  make  because 
the  question  so  decided  was  not  presented  by  the  record,  the 
stipulation  need  not  be  given.118 

The  stipulation  should  accompany  the  notice  of  appeal. 

Estoppel  to  object  to  want  of  stipulation.    Appearance 

in  the  appellate  court  and  submitting  the  appeal  to  its  jurisdic- 
tion does  not  estop  the  respondent  from  raising  the  objection 
that  there  was  no  stipulation.119 

Relief  from  stipulation.  Where  appellant,  before  the  de- 
cision, is  given  an  opportunity  to  withdraw  his  stipulation  and 
proceed  to  a  new  trial,  which  he  declines  to  do,  he  will  not, 
after  the  case  has  been  decided  adversely  to  him,  be  relieved 
from  his  stipulation ;  12°  but,  before  the  decision,  appellant  may 
be  granted  leave  to  withdraw  the  appeal  on  payment  of  costs 
if  he  has  acted  in  good  faith.121 


(C)  BY  LEAVE  OP  COURT. 

§  2540.     Constitutional  and  Code  provisions. 

After  enumerating  the  judgments  and  orders  appealable  as 
of  right  to  the  court  of  appeals,  the  Constitution  provides  that 
"the  appellate  division  in  any  department  may,  however,  allow 
an  appeal  on  any  question  of  law  which,  in  its  opinion,  ought 

no  Matter  of  Valentine's  Estate,  136  N.  Y.  623;  Lane  v.  Wheeler,  101 
N.  Y.  17. 

H7  Mundt  v.  Glokner,  160  N.  Y.  571,  followed  in  New  York  Cent.  &  H. 
R.  R.  Co.  v.  State,  166  N.  Y.  286. 

nsBeman  v.  Todd,  124  N.  Y.  114. 

ii9  Wilmore  v.  Flack,  96  N.  Y.  512. 

120  "Williams  v.  Lindblom,  143  N.  Y.  675. 

i2i  Mackay  v.  Lewis,  73  N.  Y.  382. 


3620  JUDGMENTS  AND  ORDERS  APPEALABLE.  §  2541 

Art.   II.     To  Court  of  Appeals. — C.  By  Leave   of  Court. 

to  be  reviewed  by  the  court  of  appeals."  122  Section  190  of  the 
Code,  subdivision  2,  provides  for  an  appeal,  by  leave  of  the  ap- 
pellate division,  from  an  interlocutory  judgment  or  from  an 
order  other  than  a  final  order  in  a  special  proceeding.  Section 
191  of  the  Code,  subdivisions  1  and  2,  provides  for  an  appeal, 
by  leave  of  court,  (1)  from  a  final  judgment  or  a  final  order 
in  a  special  proceeding,  where  the  action  is  commenced  in  an 
inferior  court,  and  (2)  from  a  final  judgment  in  particular 
actions  where  the  appellate  division  unanimously  affirms.  In 
short,  section  190  permits  appeals,  by  leave,  from  any  judg- 
ment or  order,  while  section  191  restricts  appeals  as  of  right  by 
providing  that,  in  certain  instances,  a  final  judgment  or  a  final 
order  in  a  special  proceeding  is  not  appealable  except  by  leave 
of  court.  Under  section  190,  questions  must  be  certified  and  the 
review  is  limited  to  answering  such  questions.  Under  section 
191,  particular  questions  need  not  be  certified  and  the  review 
is  not  limited.  Under  section  190,  leave  can  only  be  granted 
by  the  appellate  division,  while  under  section  191,  subdivision 
2,  leave  may  be  granted  by  a  judge  of  the  court  of  appeals  if 
the  appellate  division  refuses  leave. 

§  2541.    Appeal  from  interlocutory  judgment  or  nonappeal- 
able order. 

Appeals,  as  of  right,  to  the  court  of  appeals,  being  limited  to 
appeals  from  final  judgments,  final  orders  in  special  proceed- 
ings, and  orders  granting  new  trials  on  exceptions,  it  follows 
that  the  only  way  to  directly  appeal  from  an  interlocutory 
judgment  or  orders  in  an  action,  except  orders  granting  new 
trials  on  exceptions,  is  by  leave  of  court,  under  section  190  of 
the  Code,  on  certified  questions. 

Leave  to  appeal,  pursuant  to  this  section,  is  a  nullity  where 
an  appeal  can  be  taken  as  a  matter  of  right,1223,  as  where  the 
appeal  is  from  an  order  granting  a  newT  trial  on  exceptions 
and  leave  to  appeal  is  sought  to  escape  the  giving  of  a  stipula- 
tion for  judgment  absolute. 

122  Const,  art.  6,  §  9. 
122a  See  ante,  §  2539. 


8  2541           JUDGMENTS  AND  ORDERS  APPEALABLE.                3621 
Art.   II.     To   Court  of  Appeals. — C.  By  Leave   of  Court. 


Form  and  contents  of  questions  certified.    "A  question 

so  certified  should  be  a  distinct  point  or  proposition  of  law, 
clearly  stated,  so  that  it  can  be  definitely  answered  without  re- 
gard to  other  issues  in  the  case,  and  should  be  a  question  of 
law  only."  123  "If  the  question  is  stated  in  such  broad  and  in- 
definite terms  that  it  will  admit  of  one  answer  under  one  set  of 
circumstances  and  a  different  answer  under  another,  or  if  it 
presents  merely  an  abstract  proposition,124  and  no  facts  are 
disclosed  in  the  record  which  show  that  it  arose  in  the  case,1-" 
the  court  should  decline  to  answer  it."126  The  special  ques- 
tions so  certified  must  be  so  framed  that  the  answers  will  deter- 
mine the  particular  controversy  involved  in  the  appeal,  and 
not  merely  a  part  of  it.127  The  question  or  questions  certified 
must  not  only  have  been  before  the  trial  court  for  its  deter- 
mination,128 but  also  have  actually  arisen  and  been  determined 
by  the  appellate  division.129  Questions  of  law  cannot  be  cer- 
tified where  the  determination  of  the  appellate  division  rests 
wholly  on  a  question  of  fact.130 

Questions  brought  up  for  review.     Only  the  questions 

certified  are  brought  up  for  review.131  And  not  only  is  the 
court  of  appeals  confined  to  the  questions  certified,  but  it  is 
its  duty  to  examine  the  record  not  only  to  see  that  they  actually 

123  Grannan  v.  Westchester  Racing  Ass'n,  153  N.  Y.  449,  458.  Ques- 
tions of  fact  cannot  be  certified.  Matter  of  Westerfield,  163  N. 
Y.  209.  Each  question  certified  should  he  separately  stated  so  that 
it  can  be  answered  yes  or  no.     Devlin  v.  Hinman,  161  N.  Y.  115. 

124  Abstract  questions  should  not  be  certified  as  they  will  not  be 
answered.    Matter  of  Davies,  168  N.  Y.  89,  110. 

125  Question  must  be  raised  by  the  record.  Matter  of  Robinson,  160 
N.  Y.   448. 

126  Grannan  v.  Westchester  Racing  Ass'n,  153  N.  Y.  449,    458. 

127  Blaschko  v.  Wurster,  156  N.  Y.  437,  445. 

128  Matter  of  Coatsworth,  160  N.  Y.  114.  123. 

woschenck  v.  Barnes,  156  N.  Y.  316,  323;  Coatsworth  v.  Lehigh  Val- 
ley R.  Co.,  156  N.  Y.  451,  458. 

130  Matter  of  Brooklyn  Union  El.  R.  Co.,  99  App.  Div.  625,  91  N.  Y. 
Supp.  158. 

i3i  Grannan  v.  Westchester  Racing  Ass'n,  153  N.  Y.  449.  The  court 
of  appeals  has  no  power  to  proceed  further.  Davis  v.  Cornue,  151  N. 
Y.  172. 


3622  JUDGMENTS  AND  ORDERS  APPEALABLE.  §  2542 

Art.   II.     To  Court  of  Appeals. — C.  By  Leave   of  Court. 

arose,  but  also  to  see  how  they  arose,  so  that  the  questions  can 
be  decided  as  they  were  presented  to  the  court  below.132  Ordi- 
narily the  opinion  of  the  appellate  division  cannot  be  referred 
to;  but  if  the  order  certifying  the  questions  expressly  refers 
to  such  opinion,  it  can  be  resorted  to  as  a  part  of  the  record 
of  the  appellate  division  for  the  purpose  of  ascertaining  the 
ground  of  the  decision  appealed  from.133 

The  provision  of  the  Constitution,1333-  and  the  Code  subdi- 
vision enacted  in  pursuance  thereof,  now  being  considered, 
were  not  intended  to  nullify  or  affect  the  provision  which  pre- 
vents the  court  of  appeals  from  reviewing  questions  as  to  the 
sufficiency  of  the  evidence  where  the  decision  of  the  appellate 
division  is  unanimous.13313 

Judgment  or  order  from  which  appeal  to  be  taken. 

Where  a  question  is  certified,  the  appeal  may  be  from  the  inter- 
locutory judgment  or  order  which  decided  the  question,  though 
such  order  or  judgment  is  not  reviewable  except  as  to  the  cer- 
tified question.134 

§  2542.     Appeal  in  action  commenced  in  inferior  court. 

If  the  action  or  special  proceeding  is  commenced  in  any 
court  other  than  the  supreme  court,  court  of  claims,  county 
court,  or  a  surrogate's  court,  no  appeal  can  be  taken  to  the 
court  of  appeals  unless  the  appellate  division  grants  leave  to 
appeal.135  This  Code  subdivision  is  not  expressly  confined  to 
"final  judgments"  and  "final  orders"  in  the  actions  and  pro- 
ceedings mentioned,  but  it  is  submitted  that  it  applies  only  to 
such  judgments  and  orders  granting  a  new  trial  on  exceptions, 
i.  e.,  where  an  appeal  is  a  matter  of  right,  so  that  if  the  appeal 
is  from  an  order  in  an  action  other  than  an  order  granting  a 

132  Baxter  v.  McDonnell,  154  N.  Y.  435. 

133  Pringle  v.  Long  Island  R.  Co.,  157  N.  Y.  100. 
133a  Const,  art.  C,  §  9. 

i33b  Reed  v.  McCord,  160  N.  Y.  330.  Followed  in  Kleiner  v.  Third  Ave. 
R.  Co.,  162  N.  Y.  193,  198. 

is*  Bank  of  Metropolis  v.  Faber,  150  N.  Y.  200,  209. 

135  Code  Civ.  Proc.  §  191,  subd.  1.  The  leave  to  appeal  is  general 
and  no  questions  are  to  be  certified. 


§  2543  JUDGMENTS  AND  ORDERS  APPEALABLE.  3623 

Art.   II.     To   Court  of  Appeals. — C.  By  Leave   of   Court. 

new  trial  on  exceptions,  an  interlocutory  judgment,  or  a  non- 
final  order  in  a  special  proceeding,  in  an  action  or  proceeding 
commenced  in  an  inferior  court,  the  leave  to  appeal  is  not  gov- 
erned by  this  subdivision  but  by  subdivision  2  of  section  190 
so  that  specific  questions  must  be  certified  for  review.  This 
Code  section  precludes  an  appeal,  as  of  right,  from  a  judg- 
ment in  an  action  originally  commenced  in  a  justice  court  but 
transferred  to  the  supreme  court  on  a  plea  of  title  being  inter- 
posed.136 


§  2543.    Appeal  in  particular  actions  where  appellate  division 
unanimously  affirms. 

In  a  certain  class  of  actions,  a  judgment  of  affirmance  cannot 
be  appealed  from  when  the  decision  of  the  appellate  division 
is  unanimous,  unless  such  appellate  division  certifies  that,  in  its 
opinion,  a  question  of  law  is  involved  which  ought  to  be  re- 
viewed by  the  court  of  appeals,  or  unless,  in  case  of  its  refusal 
to  so  certify,  an  appeal  is  allowed  by  a  judge  of  the  court  of 
appeals.137  The  class  of  actions  selected  by  the  legislature,  in 
the  exercise  of  its  power  to  restrict  appeals,  embraces  those 
actions  in  which  the  law  has  been  well  settled  for  so  long  a 
period  as  to  make  a  further  appeal  unnecessary,  except  in  rare 
instances  involving  new  questions,  when  permission  to  appeal 
can  readily  be  obtained.138  The  actions  enumerated  in  the  Code 
in  which  a  unanimous  affirmance  precludes  an  appeal  from  the 
judgment  to  the  court  of  appeals,  except  by  leave  of  court, 
are  as  follows : 

1.  Actions  to  recover  damages  for  a  personal  injury.139 

2.  Actions  to  recover  damages  for  injuries  resulting  in 
death. 

136  Sidwell  v.  Greig,  157  N.  Y.  30. 

137  code  Civ.  Proc.  §  191,  subd.  2. 

138  Boyd  v.  Gorman,  157  N.  Y.  365. 

139  What  are  actions  for  personal  injury,  see  Code  Civ.  Proc.  §  3343, 
subd.  9;  vol.  1,  p.  481;  vol.  2,  pp.  1279,  1393,  2066.  Action  to  recover 
damages  for  malicious  prosecution  is  action  for  personal  injury,  within 
this  Code  provision.     Parr  v.  Loder,  180  N.  Y.  531. 


3024               JUDGMENTS  AND  ORDERS  APPEALABLE.           §  2543 
Art.   II.     To  Court  of  Appeals. — C.  By  Leave   of  Court. 


3.  Actions  to  set  aside  a  judgment,  sale,  transfer,  convey- 
ance, assignment  or  written  instrument  as  in  fraud  of  the 
rights  of  creditors. 

4.  Actions  to  recover  wages,  salary,  or  compensation  for 
services,  including  expenses  incidental  thereto,  or  damages  for 
breach  of  any  contract  therefor.140  An  action  for  materials 
furnished  and  services  rendered  pursuant  to  a  written  agree- 
ment in  decorating  and  painting  a  building  is  not  an  action  for 
wages  or  services,  within  this  Code  provision.141  Nor  does  it 
apply  to  actions  to  recover  salaries  where  the  compensation  is 
determined  by  statute  as  an  incident  to  a  public  office.142  But 
the  Code  provision  is  not  limited  to  actions  to  recover  the 
claims  of  employes  and  laboring  men  employed  under  a  given 
rate  of  wages  or  at  a  given  salary  or  rate  of  compensation,  but 
is  sufficiently  broad  to  cover  actions  on  a  quantum  meruit  for 
services  rendered  by  a  professional  man.143 

What  is  a  judgment  of  affirmance.  No  difficulty  has  been 

experienced  in  determining  what  is  a  judgment  of  affirmance. 
A  judgment  entered  on  an  order  of  the  appellate  division  over- 
ruling exceptions  directed  to  be  heard  by  it  in  the  first  instance 
and  denying  the  motion  for  a  new  trial  based  thereon,  and  or- 
dering judgment  on  the  verdict,  is  a  judgment  of  affirmance.144 

What  is  a  "unanimous"  affirmance.  A  unanimous  affirm- 
ance means  an  affirmance  by  all  the  justices  of  the  appellate  di- 
vision who  hear  the  appeal,145  though  it  is  held  that  where  one 
of  them  who  sits,  dies,146  or  is  appointed  to  the  court  of  ap- 
peals,147 before  the  decision,  and  takes  no  part  in  it,  a  concur- 
rence by  the  remaining  justices  is  a  unanimous  affirmance.    But 

140  This  clause  was  added  by  amendment  in  1898. 

141  Beady  v.  Rothschild,  170  N.  Y.  574  (mem). 

142  Donnelly  v.  City  of  New  York,  54  App.  Div.  155,  66  N.  Y.  Supp. 
411. 

143  Boyd  v.  Gorman,  157  N.  Y.  365. 

144  Huda  v.  American  Glucose  Co.,  151  N.  Y.  549. 

145  if  only  four  justices  sit  and  all  concur,  the  affirmance  is  unani- 
mous.   Harroun  v.  Brush  Electric  Light  Co.,  152  N.  Y.  212. 

146  McDonnell  v.  New  York  Cent.  &  H.  R.  R.  Co.,  159  N.  Y.  524 

147  Wittleder  v.  Citizens'  Elec.  Illuminating  Co.,  47  App.  Div.  543. 
62  N.  Y.  Supp.  488. 


2544  JUDGMENTS  AND  ORDERS  APPEALABLE.  3625 


Art.   III.     To  Appellate  Division. — 1.  Judgments. 


where  one  of  the  justices  sat  but  did  not  vote  and  the  remain- 
ing four  justices  concurred  in  affirmance,  it  is  not  a  unanimous 
affirmance.148 

In  the  absence  of  anything  in  the  record  to  show  that  the  de- 
cision of  the  appellate  division  was  unanimous,  the  court  of 
appeals  will  treat  it  as  otherwise.149  The  burden  of  showing 
that  a  judgment  of  affirmance  was  unanimous  is  on  the  party 
so  claiming,  and  recourse  cannot  be  had  to  the  opinion  but  the 
fact  must  be  established  either  by  the  judgment  or  by  a  cer- 
tificate of  the  court  appearing  in  the  record.150 

ART.  III.     TO  APPELLATE  DIVISION. 

(A)  FROM  SUPREME  COURT. 
1.  Judgments. 

§  2544.    Final  judgments. 

A  final  judgment  of  the  supreme  court  is  appealable  to  the 
appellate  division.131  What  is  a  final  judgment  has  already 
been  considered.152  In  no  case  where  an  appeal  is  taken  to  the 
special  term,  can  a  further  appeal  be  taken  to  the  appellate  di- 
vision.153 Where  an  interlocutory  judgment  entered  on  over- 
ruling a  demurrer  is  reversed  by  the  appellate  division  which 
sustains  the  demurrer  and  grants  leave  to  plead  over  within 
a  specified  time,  and  thereafter,  on  the  failure  to  plead  over, 
a  final  judgment  is  entered  dismissing  the  complaint  and 
awarding  costs,  such  final  judgment  is  appealable  to  the  appel- 
late division  as  if  it  was  a  judgment  of  the  special  term.154 

148  Warn  v.  New  York  Cent.  &  H.  R.  R.  Co.,  163  N.  Y.  525. 

149  Matter  of  Marcellus,  165  N.  Y.  70.  75. 

iso  Kaplan  v.  New  York  Biscuit  Co.,  151  N.  Y.  171;  Laidlaw  v.  Sage, 
158   N.  Y.   73,  86. 

i5i  Code  Civ.  Proc.  §  1346. 

152  Volume  3,  pp.  2752-2754  and  ante,  §  2536. 

153  Boechat  v.  Brown,  9  App.  Div.  369,  41  N.  Y.  Supp.  467. 

154  Abbey  v.  Wheeler,  58  App.  Div.  451,  69  N.  Y.  Supp.  432. 


3626  JUDGMENTS  AND  ORDERS  APPEALABLE.  g  2546 

Art.  III.     To  Appellate  Division. — 1.  Judgments. 

§  2545.     Interlocutory  judgments. 

Prior  to  the  present  Code,  an  interlocutory  judgment  was 
not  appealable,  the  only  remedy  being  by  a  motion  for  a  new 
trial.  This  rule  still  prevails  as  to  appeals  to  the  court  of  ap- 
peals but  the  Code  now  expressly  provides  that  ''an  appeal 
may  be  taken  from  an  interlocutory  judgment  rendered  at  a 
special,  or  trial,  term  of  the  supreme  court,  or  entered  on  the 
report  of  a  referee. ' ' 155  The  alternative  remedy  by  a  motion 
for  a  new  trial  at  the  appellate  division,  on  exceptions,  is  con- 
fined to  trials  of  an  issue  of  "fact,"156  and  hence  the  only  way 
to  directly  review  an  interlocutory  judgment  entered  after  a 
decision  on  a  demurrer  is  either  to  directly  appeal  therefrom 
or  to  specify  it  in  the  notice  of  appeal  from  the  final  judgment. 
An  "order"  or  "decision"  overruling  or  sustaining  a  demurrer 
is  not  appealable,157  since  the  appeal  must  be  taken  from  the 
interlocutory  judgment  entered  on  the  order  or  decision.158 

§  2546.     Judgment  or  order  entered  on  decision  of  appellate 
term  on  appeal  from  the  city  court. 

An  appeal  to  the  appellate  division  of  the  supreme  court  in 
the  first  judicial  department  may  be  taken  from  the  judgment 
or  order  entered  on  the  determination  of  an  appeal  to  the  ap- 
pellate term  from  the  city  court  of  New  York,  provided  that 
leave  to  appeal  be  obtained,159  and,  if  the  appeal  is  from  an 
order  granting  a  new  trial  on  a  case  or  exeception,  that  appel- 
lant file  a  stipulation  for  judgment  absolute  with  his  applica- 
tion for  leave  to  appeal. 

155  Code  Civ.  Proc.  §  1349. 

ise  Code  Civ.  Proc.  §  1001. 

i5T  Brown  v.  Leary,  100  App.  Div.  421,  91  N.  Y.  Supp.  463;  Unckles 
v.  Hentz,  19  App.  Div.  165,  45  N.  Y.  Supp.  894  Mooney  v.  Byrne,  1 
App.  Div.  316,  37  N.  Y.  Supp.  388;  Kley  v.  Higgins,  59  App.  Div.  581, 
69  N.  Y.  826;   Gabay  v.  Doane,  66  App.  Div.  507,  73  N.  Y.   Supp.  381. 

issoiin  v.  Arendt,  35  App.  Div.  529,  54  N.  Y.  Supp.  820;  Spies  v. 
Munroe,  35  App.  Div.  527,  54  N.  Y  Supp.  9i6. 

159  Granting  of  leave  to  appeal,  see  post,  §§  2621-2626. 


§  2547  JUDGMENTS  AND  ORDERS  APPEALABLE.  3627 

Art.   III.     To  Appellate  Division. — 2.   Orders  in  Actions  in  Court. 


2.  Orders  Made  in  Actions  in  Court. 

§  2547.     Code  provision. 

An  appeal  may  be  taken  to  the  appellate  division  of  the  su- 
preme court  from  an  order  made  in  an  action  upon  notice  at  a 
special  term  or  a  trial  term  of  the  supreme  court  in  either  of 
the  following  cases: 

1.  Where  the  order  grants,  refuses,  continues,  or  modifies  a 
provisional  remedy;  or  settles  or  grants  or  refuses  an  applica- 
tion to  resettle  a  case  on  appeal  or  a  bill  of  exceptions. 

2.  Where  it  grants  or  refuses  a  new  trial,  except  that  where 
specific  questions  of  fact,  arising  upon  the  issues,  in  an  action 
triable  by  the  court,  have  been  tried  by  a  jury,  pursuant  to  an 
order  for  that  purpose,  as  prescribed  in  section  971  of  the  Code, 
an  appeal  cannot  be  taken  from  an  order  granting  or  refusing 
a  new  trial  upon  the  merits. 

3.  Where  it  involves  some  part  of  the  merits. 

4.  Where  it  affects  a  substantial  right. 

5.  Where,  in  effect,  it  determines  the  action,  and  prevents 
a  judgment  from  which  an  appeal  might  be  taken. 

6.  Where  it  determines  a  statutory  provision  of  the  state  to 
be  unconstitutional;  and  the  determination  appears  from  the 
reasons  given  for  the  decision  thereupon,  or  is  necessarily  im- 
plied in  the  decision. 

An  order,  made  upon  a  summary  application,  after  judg- 
ment, is  deemed  to  have  been  made  in  the  action  within  the 
meaning  of  this  section.160 

An  order  may  be  made  "in  an  action,"  within  this  Code  pro- 
vision, though  made  preliminary  to  bringing  the  action.161 

Any  ruling  of  the  court  on  the  trial  can  be  reviewed  only 
by  taking  an  exception  and  subsequently  appealing  from  the 
judgment.162 

i6o  Code  Civ.  Proc.  §  1347. 

isi  People  ex  rel.  Morse  v.  Nussbaum,  55  App.  Div.  245,  248,  67  N. 
Y.  Supp.  492. 

162  Order  entered  on  ruling  denying  motion,  made  at  the  opening  of 
the  trial,  that  the  trial  proceed  on  an  amended  complaint  instead  of 


3628  JUDGMENTS  AND  ORDERS  APPEALABLE.  §  2550 

Art.  III.     To  Appellate  Division. — 2.  Orders  in  Actions  in  Court. 


Discretionary  orders  are  appealable  if  they  are  embraced 
within  any  of  the  six  cases  of  appealable  orders.163 

This  Code  provision  does  not  apply  to  an  appeal  from  an  in- 
ferior court  where  the  special  term  is  constituted  an  appellate 
court.104 

§  2548.     Order  relating  to  provisional  remedy. 

An  order  which  grants,  refuses,  continues  or  modifies  a  pro- 
visional remedy  is  appealable.105  And  the  appellate  division, 
on  an  original  application  in  a  case  where  no  appeal  has  been 
taken,  may  grant  any  provisional  remedy  which  has  been  ap- 
plied for  "without  notice"  to  the  adverse  party  and  refused 
by  the  supreme  court  or  a  justice  thereof.106 

§  2549.     Orders  relating  to  settlement  or  resettlement  of  a 
case. 

An  order  which  settles,  or  grants  or  refuses  an  application 
to  resettle  a  case  on  appeal  or  a  bill  of  exceptions,  is  appeal- 
able.167 

§  2550.     Order  granting  or  refusing  new  trial. 

An  order  granting  or  refusing  a  new  trial  is  appealable,  ex- 
cept that  where  specific  questions  of  fact,  arising  on  the  issues, 
in  an  action  triable  by  the  court,  have  been  tried  by  a  jury, 
pursuant  to  an  order  for  that  purpose,  an  appeal  cannot  be 

the  original  is  not  appealable.  Nutting  v.  Kings  County  El.  R.  Co., 
3  App.  Div.  423,  38  N.  Y.  Supp.  654. 

lesMcMahon  v.  Mutual  Ben.  Life  Ins.  Co.,  12  Abb.  Pr.  28;  Myers 
v.  Riley,  36  Hun,  20;  Martin  v.  Windsor  Hotel  Co.,  70  N.  Y.  101; 
Sprague  v.  Dunton,  14  Hun,  490. 

i^Boechat  v.  Brown,  9  App.  Div.  369,  41  N.  Y.  Supp.  467. 

165  code  Civ.  Proc.  §  1347,  subd.  1. 

ice  Code  Civ.  Proc.  §  1348. 

167  Code,  §  1347,  subd.  1;  Zimmer  v.  Metropolitan  St.  R.  Co.,  28  App. 
Div.  504,  51  N.  Y.  Supp.  247.  Appellate  division  has  no  power,  on  an 
original  application,  to  settle  or  resettle  case.  Ross  v.  Ingersoll,  55 
App.  Div.  379.  54  N.  Y.  Supp.  827. 


§  2551  JUDGMENTS  AND  ORDERS  APPEALABLE.  3629 

Art.   III.     To   Appellate  Division. — Orders   Relating  to  New  Trials. 


taken  from  an  order  granting  or  refusing  a  new  trial  on  the 
merits.168 

The  exception  does  not  apply  to  actions  where  specific  ques- 
tions of  fact,  though  arising  in  an  action  not  triable  by  jury, 
are  themselves  triable  by  jury,  "as  a  matter  of  right"  because 
of  a  constitutional  provision  or  an  express  provision  of  law 
(Code  Civ.  Proc.  §  970),  but  only  to  actions  not  triable  by  jury 
where  the  submission  of  issues  to  a  jury  is  a  "matter  of  dis- 
cretion" (Code  Civ.  Proc.  971). 16°  The  reason  why  a  separate 
appeal  is  not  allowed  from  the  order  is  that  the  court  may 
either  accept  or  reject  the  findings  of  the  jury  and,  if  rejected, 
an  appeal  would  be  useless.170  This  Code  exception  does  not 
undertake  to  define  precisely  what  is  to  be  understood  as  the 
"merits"  referred  to  but  as  the  language  has  there  been  em- 
ployed, it  probably  was  not  designed  to  extend  beyond  "the 
effect  of  the  evidence  appearing  on  the  trial  of  the  issues," 
and  does  not  preclude  the  power  to  review  rulings  on  the  trial 
rejecting  or  admitting  evidence.171  Where  a  new  trial,  in  such 
a  ease,  has  been  granted  or  refused  on  the  merits,  the  only 
remedy  is  by  a  motion  for  a  new  trial  under  section  1003  of  the 
Code.172 

An  appeal  may  be  taken  from  an  order  denying  a  motion  for 
a  new  trial  though  judgment  has  been  entered  and  the  time  to 
appeal  from  the  judgment  has  expired.173 

§  2551.     Order  involving  some  part  of  the  merits. 

An  order  which  "involves  some  part  of  the  merits"  is  ap- 
pealable.174 

168  Code  Civ.  Proc.  §  1347,  subd.  2. 

169  Framing  issues  for  jury  as  a  matter  of  right,  see  vol.  2,  p.  2154. 
Framing  issues  for  jury  as  a  matter  of  discretion,  see  vol.  2,  p.  2159. 

iTo  Anderson  v.  Carter,  24  App.  Div.  462,  465,  49  N.  Y.  Supp.  255. 

i"i  Bowen  v.  Becht,  35  Hun,  434.  What  constitutes  granting  or 
refusal  of  new  trial  "on  the  merits,"  see,  also,  Anderson  v.  Carter,  24 
App.  Div.  462,  468,  49  N.  Y.  Supp.  255. 

172  Bowen  v.  Becht,  35  Hun,  434. 

its  Voisin  v.  Commercial  Mut.  Ins.  Co.,  123  N.  Y.  120. 

174  Code  Civ.  Proc.  §  1347,  subd.  3. 


3630  JUDGMENTS  AND  ORDERS  APPEALABLE.  §  2551 

Art.    III.     To   Appellate   Division. — Orders    Involving   Merits. 

The  phrase  "involves  the  merits"  refers  to  matter  of  sub- 
stance as  distinguished  from  matter  of  form.  The  term  has 
acquired  no  precise  technical  meaning  but  is  to  be  regarded  as 
referring  to  the  strict  legal  rights  of  the  parties,  as  distin- 
guished from  those  mere  questions  of  practice  which  every 
court  regulates  for  itself,  and  from  all  matters  which  depend  on 
the  discretion  or  favor  of  the  court.175  For  instance,  an  order 
striking  out  a  denial  of  a  material  allegation  in  a  pleading 
affects  the  merits,176  as  does  an  order  allowing  a  defendant  to 
set  up  a  new  defense  which,  if  established,  would  be  fatal  to 
plaintiff's  action,177  or  an  order  authorizing  an  amendment  of 
a  complaint  by  inserting  a  new  cause  of  action,178  or  an  order 
striking  a  good  defense  from  an  answer;179  but  orders  denying 
a  motion  to  strike  out  portions  of  a  pleading  as  irrelevant  or 
redundant,180  or  directing  a  pleading  to  be  made  more  definite 
and  certain,lsl  or  refusing  leave  to  reply  after  the  time  to  reply 
is  past,182  or  directing  a  sale  of  perishable  property,  pending 
the  action,183  have  been  held  not  to  affect  the  merits,  though 
this  does  not  necessarily  mean  that  such  orders  are  not  appeal- 
able since  they  may  be  appealable  as  affecting  substantial  rights 
though  not  appealable  as  involving  the  merits. 

175  Cruger  v.  Douglas,  8  Barb.  81,  which  reviews  the  prior  decisions. 
St.  John  v.  West,  4  How.  Pr.  329;  Tallman  v.  Hinman,  10  How.  Pr.  90; 
Tracy  v.  New  York  Steam  Faucet  Mfg.  Co.,  1  E.  D.  Smith,  357;  Megrath 
v.  Van  Wyck,  5  Super.  Ct.  (3  Sandf.)  751.  The  term  "involves  the 
merits"  must  be  so  interpreted  as  to  embrace  orders  which  pass  on  the 
substantial  legal  rights  of  the  suitors,  whether  such  rights  do  or  do 
not  relate  directly  to  the  cause  of  action  or  subject-matter  in  contro- 
versy.   Bolton  v.  Donavan,  9  N.  D.  575. 

176  otis  v.  Ross,  8  How.  Pr.  193. 

177  Harrington  v.  Slade,  22  Barb.  161. 

178  Sheldon  v.  Adams,  41  Barb.   54. 
i79Rapalee  v.  Stewart,  27  N.  Y.  310. 

i3o  Murphy  v.  Dickinson,  40  How.  Pr.  66;  Hughes  v.  Mercantile  Mut. 
Ins.  Co.,  41  How.  Pr.  253,  10  Abb.  Pr.  (N.  S.)  37. 

isi  Geis  v.  Loew,  15  Abb.  Pr.  (N.  S.)  94,  36  Super.  Ct.  (4  J  &  S.)  190. 

182  Thompson  v.  Starkweather,  2  Code  R.  41. 

183  Chapman  v.  Hammersley,  4  Wend.  173. 


§  2552  JUDGMENTS  AND  ORDERS  APPEALABLE.  3631 

Art.    III.     To    Appellate    Division. — Substantial    Right    Orders. 

§  2552.     Order  affecting  a  substantial  right. 

An  order  affecting  a  substantial  right  is  appealable. 

Prior  to  the  amendments  of  the  Code  to  conform  to  the  pres- 
ent constitution,  an  order  "affecting  a  substantial  right  and 
not  resting  in  discretion"  was  appealable  to  the  court  of 
appeals.  To  be  appealable  to  the  appellate  division,  it  is  imma- 
terial that  the  order  is  a  discretionary  one  if  it  affects  a  sub- 
stantial right.184  "Substantial  rights"  include  "all  positive, 
material  and  absolute  rights,  as  distinguished  from  those  of  a 
merely  formal  or  unessential  nature."185 

Order  imposing  conditions.  An  order  imposing  condi- 
tions is  appealable  where  the  terms  imposed  affect  a  substan- 
tial right.186  An  order  charging  a  party  with  the  payment  of 
a  sum  of  money  affects  a  substantial  right.187 

Order  to  show  cause.     An  order  to  show  cause,188  or  an 

order  denying  an  application  for  an  order  to  show  cause,189 
does  not  affect  a  substantial  right  and  is  not  appealable.190-192 

Order  on  motion  for  reargument  or  resettlement.     An 

ordei4  denying  a  motion  for  a  reargument  is  not  appealable,193 
nor  is  an  order  refusing  to  resettle  an  order.194 

Order  granting   or  refusing  leave  to  sue.     An  order 

granting,195  or  refusing,196  leave  to  sue  is  appealable. 

is4King  v.  Sullivan,  31  App.  Div.  549,  553,  52  N.  Y.  Supp.  130;  Se- 
curity Bank  v.  National  Bank,  2  Hun,  287. 

iss  Security  Bank  v.  National  Bank,  2  Hun,  287. 

186  People  v.  New  York  Cent.  R.  Co.,  29  N.  Y.  418. 

187  Hand  v.  Burrows,  15  Hun,  481;  Clark  v.  Eldred,  54  Hun,  5,  7  N. 
Y.  Supp.  95. 

iss  Watt  v.  Watt,  26  Super.  Ct.  (3  Rob.)  615,  30  How.  Pr.  345. 

189  Grossman  v.  Supreme  Lodge,  K.  &  L.  of  H.,  16  Civ.  Proc.  R. 
(Browne)   215,  5  N.  Y.  Supp.  122. 

190-192  Anderson  v.  Daley,  159  N.  Y.  146. 

193  Reargument  of  motion.  Matter  of  Grout,  83  Hun,  25,  31  N.  Y. 
Supp.  602,  followed  in  Peterson  v.  Felt,  61  App.  Div.  176,  70  N.  Y.  Supp. 
440.     Reargument  of  appeal.     Tucker  v.  Dudley,  104  App.  Div.  191. 

i94Waltham  Mfg.  Co.  v.  Brady,  67  App.  Div.  102,  73  N.  Y.  Supp.  540; 
Hall  v.  Gilman,  87  App.  Div.  248,  84  N.  Y.  Supp.  279,  followed  in  Garo- 
falo  v.  Prividi,  43  Misc.  359,  87  N.  Y.  Supp.  467. 


3632  JUDGMENTS  AND  ORDERS  APPEALABLE.  §  2552 

Art.    III.     To    Appellate    Division. — Substantial    Right    Orders. 

Orders  as  to  parties.     An  order  bringing  in  new  parties, 


whether  by  order  of  interpleader,197  or  by  an  order  of  substitu- 
tion in  case  of  death  or  devolution  of  liability,108  is  appealable. 

Orders  as  to  change  of  place  of  trial.    An  order  on  a 

motion  for  a  change  of  place  of  trial  is  appealable.199 

Order  transferring  cause  to  another  court.    An  order 

removing  the  action  to  a  federal  court  affects  a  substantial 
right.200 

Orders  as  to  pleadings.     Practically  all  orders  relating 

to  pleadings  may  affect  a  substantial  right  so  as  to  be  appeal- 
able. An  order  refusing  or  granting  certain  relief  may  in  one 
case,  affect  a  substantial  right,  while  it  does  not  in  another 
case.  For  instance  an  order  allowing  an  amendment  of  the 
pleadings  may  or  may  not  affect  a  substantial  right  according 
to  the  nature  of  the  amendment.  If  the  amendment  is  merely 
formal  the  order  is  not  appealable  as  affecting  a  substantial 
right,-01  while  if  it  is  material,  as  where  a  cause  of  action  or 
defense  is  changed  or  added,  it  affects  a  substantial  right  so  as 
to  be  appealable.202  The  following  orders  have  been  held  ap- 
pealable as  affecting  a  substantial  right:  An  order  denying 
motion  to  strike  out  part  of  a  pleading  as  irrelevant  and  re- 
dundant ; 203  order  refusing  to  strike  out  answer  as  sham ; 204 

195  Matter  of  Commercial  Bank,  35  App.  Div.  224,  54  N.  Y.  Supp.  722; 
Hanover  Fire  Ins.  Co.  v.  Tomlinson,  58  N.  Y.  215. 
i9G  Miller  v.  Loeb,  64  Barb.  454. 

197  Wilson  v.  Duncan,  11  Abb.  Pr.  3. 

198  st.  John  v.  Croel,  10  How.  Pr.  253;  Farnham  v.  Benedict,  29  Hun, 
44. 

199  MacDonald  v.  MacDonald,  14  Hun,  496;  Hoffman  v.  Sparling,  12 
Hun,  83. 

aooDeCamp  v.  New  Jersey  Mut.  Life  Ins.  Co.,  32  Super.  Ct.  (2 
Sweeny)  481.  Contra,  Illius  v.  New  York  &  N.  H.  R.  Co.,  13  N.  Y.  (3 
Kern.)  597.     See,  also,  Fargo  v.  McVicker,  38  How.  Pr.  1,  21. 

201  Simmons  v.  Lyons,  35  Super.  Ct.  (3  J.  &  S.)  554. 

202  See  Schermerhorn  v.  Wood,  30  How.  Pr.  316. 

203  jeffras  v.  McKillop  &  Sprague  Co.,  4  T.  &  C.  578;  Neresheimer 
v.  Bowe,  11  Daly,  306.  Contra,  Emmens  v.  McMillan  Co.,  21  Misc.  638, 
47  N.  Y.  Supp.  1099. 

204  Sherman  v.  Boehm,  15  Abb.  N.  C.  254. 


§  2552  JUDGMENTS  AND  ORDERS  APPEALABLE.  3633 

Art.    III.     To   Appellate    Division. — Substantial    Right    Orders. 

order  denying  a  motion  to  compel  the  acceptance  of  a  plead- 
ing ; 205  order  refusing  leave  to  file  a  supplemental  answer  ;206 
order  allowing  a  supplemental  answer  setting  up  a  new  de- 
fense ; 207  order  granting  208  or  denying  209  a  motion  to  make  a 
pleading  more  definite  and  certain.  It  has  been  held  that  an 
order  on  a  motion  to  compel  different  causes  of  action  to  be 
separately  stated  does  not  involve  a  substantial  right.210 

Order  on  motion  for  judgment  on  the  pleadings.    An 

order  "granting"  judgment  on  the  ground  of  the  frivolous- 
ness  of  a  demurrer,  answer,  or  reply  is  appealable,211  but  an 
order  "refusing"  judgment  is  not,  by  express  Code  provi- 
sion.212 However,  an  order  denying  a  motion  for  judgment 
on  the  pleadings,  for  a  sum  admitted  to  be  due,  is  appeal- 
able.218 

Order  as  to  mode  of  trial.  An  order  made  on  an  appli- 
cation to  form  issues  for  trial  by  jury  affects  a  substantial 
right.214  Trial  by  jury  is  a  substantial  right,  and  an  order 
directing  a  reference  in  a  cause  in  which  the  party  opposing  is 
entitled  to  a  jury  trial  is  appealable.215  An  order  vacating  an 
order  of  reference  is  appealable.210 

205  Pattison  v.  O'Connor,  23  Hun,  307. 

206  Bowen  v.  Irish  Presbyterian  Congregation,  19  Super.  Ct.  (6  Bosw.) 
245. 

207  Harrington  v.  Slade,  22  Barb.  161;  St.  John  v.  Croel,  10  How.  Pr. 
253. 

sosBrownell  v.  National  Bank  of  Gloversville,  13  Wkly.  Dig.  371; 
Peart  v.  Peart,  48  Hun,  79. 

209  Sprague  v.  Dunton,  14  Hun,  490;  Brinkerhoff  v.  Perry,  59  How. 
Pr.  155.     Contra,  Dudley  v.  Grissler,  37  Super.  Ct.  (5  J.  &  S.)  412. 

210  Goldberg  v.  Utley,  60  N.  Y.  427. 

2ii  Joseph  Dixon  Crucible  Co.  v.  New  York  City  Steel  Works,  9  Abb. 
Pr.  (N.  S.)  195,  57  Barb.  447. 

212  Code  Civ.  Proc.  §  537;   Carpenter  v.  Adams,  34  Hun,  429. 

213  Marsh  v.  West,  Bradley  &  Cary  Mfg.  Co.,  46  Super.  Ct.  (14  J.  & 
S.)  8. 

2i4Ellensohn  v.  Keyes,  6  App.  Div.  601,  39  N.  Y.  Supp.  774. 

215  Martin  v.  Windsor  Hotel  Co.,  70  N.  Y.  101;  Roslyn  Heights  Land 
&  Imp.  Co.  v.  Burrowes,  22  App.  Div.  540.  48  N.  Y.  Supp.  15;  Francis 
v.  Porter,  88  Hun,  325,  34  N.  Y.  Supp.  752;   Central  Trust  Co.  v.  New 

N.  Y.  Prac— 228. 


3634  JUDGMENTS  AND  ORDERS  APPEALABLE.  §  2552 

Art.    III.     To    Appellate    Division. — Substantial    Right    Orders. 


Order  denying  postponement.  An  order  denying  a  mo- 
tion to  postpone  the  trial  is,  it  seems,  not  appealable.217 

Order  requiring  election  between  causes  of  action.    An 

order  denying  motion  that  plaintiff  elect  between  causes  of 
action,  where  the  motion  is  made  before  answering,  is  appeal- 
able.2" 

Order   of  dismissal   or  nonsuit.     An   order   dismissing 

a  complaint  is  not  appealable  but  the  appeal  must  be  from  the 
judgment  entered  thereon,219  except  that  where  the  dismissal 
is  for  the  failure  of  plaintiff  to  proceed  the  appeal  must  be 
from  the  order  rather  than  the  judgment.220  An  order  refusing 
to  dismiss  the  complaint,  where  the  motion  is  made  at  the 
opening  of  the  trial,  is  not  appealable,221  nor  is  an  order  deny- 
ing a  motion  for  a  nonsuit.222 

Orders  relating  to  depositions.     An  order  granting  or 

denying  a  commission  to  take  testimony  outside  the  state  af- 
fects a  substantial  right.223  So  does  an  order  granting  or  re- 
fusing an  application  for  the  examination  of  a  party  before 
trial.224     So  an  order,  on  settling  interrogatories,  disallowing 

York  City  &  N.  R.  Co.,  IS  Abb.  N.  C.  381;  Moffat  v.  Moffat,  3  How.  Pr. 
(N.  S.)  156. 

2ic  Hoffman  v.  Sparling,  12  Hun,  83. 

217  Volume  2,  p.  2033. 

21s  Frieze  v.  Alabama  G.  S.  R.  Co.,  99  App.  Div.  545,  91  N.  Y.  Supp. 
81. 

219  Citron  v.  Bayley,  36  App.  Div.  130,  55  N.  Y.  Supp.  382;  Kelly  v. 
Theiss,  77  App.  Div.  81,  78  N.  Y.  Supp.  1050.  This  rule  also  applies 
where  dismissal  is  after  opening  of  counsel.     Volume  2,  p.  2211. 

220  Volume  2,  p.  2132. 

221  Dickson  v.  Knapp,  17  App.  Div.  36,  44  N.  Y.  Supp.  636. 

222  Xo  such  order  can  properly  be  entered.  Brauer  v.  Oceanic 
Steam  Nav.  Co.,  77  App.  Div.  407,  79  N.  Y.  Supp.  299. 

223Burnell  v.  Coles,  23  Misc.  615,  52  N.  Y.  Supp.  200;  Jemison  v. 
Citizens'  Sav.  Bank  of  Jefferson,  85  N.  Y.  546.  That  order  allowing  a 
commission  is  not  appealable  while  order  granting  is.  see  Treadwell 
v.  Pomeroy,  2  T.  &  C.  470;  Wallace  v.  American  Linen  Thread  Co.,  2 
T.  &  C.  574. 

224  Green  v.  Wood,  6  Abb.  Pr.  277;  Fiske  v.  Smith,  9  App.  Div.  208; 
41  N.  Y.  Supp.  176. 


§  2552  JUDGMENTS  AND  ORDERS  APPEALABLE.  3(535 

Art.    III.     To    Appellate    Division. — Substantial    Right    Orders. 

a  pertinent  question,  affects  a  substantial  right,225  though  an 
appeal  does  not  lie  from  an  order  annexing  an  improper  ques- 
tion to  a  commission  since  the  party  may  raise  the  objection  on 
the  trial.220 

Order  for  discovery.  An  order  granting  227  or  refus- 
ing 22S  a  discovery  of  books  and  papers  affects  a  substantial 
right  so  as  to  be  appealable. 

Orders  relating-  to  calendar.  The  Code  expressly  pro- 
vides that  an  order  granting  or  refusing  a  preference  on  the 
calendar,  where  the  right  thereto  does  not  appear  on  the  plead- 
ings or  papers  to  be  used  in  the  case,  is  not  appealable.229  Ex- 
cept in  such  a  case,  an  order  granting  or  denying  a  preference 
on  the  calendar  affects  a  substantial  right  so  as  to  be  appeal- 
able.230 So  an  order  placing,231  or  refusing  to  place,232  a  cause 
on  the  short  cause  calendar,  or  striking  a  case  therefrom,233 
is  appealable.  An  order  striking  a  cause  from  the  calendar 
affects  a  substantial  right.234  It  has  been  held,  however,  that 
a  decision  of  a  trial  justice  that  a  trial  shall  proceed,  accom- 
panying his  refusal  to  strike  the  case  from  the  calendar  of 
short  causes,  is  a  ruling  on  the  trial  to  which  an  exception  may 
be  taken,  and  an  appeal  cannot  be  taken  from  an  order  deny- 
ing a  motion  to  vacate  an  order  entered  on  such  decision.235 

If  the  adverse  party  does  not  appear  nor  oppose  the  motion 
for  a  preference,  rightfully  claimed  by  the  plaintiff,  it  seems 

zzsuiine  v.  New  York,  Cent.  &  H.  R.  R.  Co.,  79  N.  Y.  175;  Thorp  v. 
Riley,  56  Super.  Ct.  (24  J.  &  S.)  254,  3  N.  Y.  Supp.  547. 

226  Uline  v.  New  York  Cent.  &  H.  R.  R.  Co.,  79  N.  Y.  175. 

227  central  Nat.  Bank  v.  Clark,  34  Super.  Ct.  (2  J.  &  S.)  487;  Thomp- 
son v.  Erie  R.  Co.,  9  Abb.  Pr.  (N.  S.)  212,  230. 

228  Livingston  v.  Curtis,  12  Hun,  121. 

229  Code  Civ.  Proc.  §  793.    . 

230  Schwartz  v.  Wolfrath,  24  Misc.  406,  53  N.  Y.  Supp.  263. 

231  Buell  v.  Hollins,  16  Misc.  551,  38  N.  Y.  Supp.  879. 

232  Herzfeld  v.  Strauss,  24  App.  Div.  95,  49  N.  Y.  Supp.  92. 

233  Buell  v.  Hollins,  16  Misc.  551,  38  N.  Y.  Supp.  879.  But  see 
Knowles  v.  Lichtenstein,  31  App.  Div.  496,  52  N.  Y.  Supp.  1. 

234  People  ex  rel.  Lardner  v.  Carson,  78  Hun,  544,  29  N.  Y.  Supp. 
619;  Beary  v.  Hoster,  24  State  Rep.  879. 

235  Knowles  v.  Lichtenstein,  31  App.  Div.  496,  52  N.  Y.  Supp.  1. 


;;(;:',t;  JUDGMENTS  AND  ORDERS  APPEALABLE.  §  2552 

Art.    III.     To    Appellate    Division. — Substantial    Right    Orders. 

that  the  remedy  for  refusing  to  grant  the  preference  is  not  by 
appeal  but  by  a  mandamus  proceeding  against  the  judge.238 

Order  to  hear  exceptions  at  appellate  division.     It  has 

been  held  that  an  order  denying  a  motion  that  the  exceptions 
be  heard  in  the  first  instance  at  the  appellate  division  is  not 
appealable.-37 

Orders  relating  to  judgments.     An  order  vacating  or 

refusing  to  vacate  a  judgment  affects  a  substantial  right.238 
So  does  an  order  on  a  motion  to  open  a  default  judgment,239 
or  an  order  denying  a  motion  to  vacate  the  satisfaction  of  a 
judgment.240 

Orders  relating  to  costs  and  fees.     Orders  relating  to 

an  extra  allowance  are  appealable.241  So  is  an  order  allowing 
excessive  fees  to  a  referee,242  or  an  order  depriving  a  referee 
of  his  fees,243  or  an  order  fixing  the  commissions  of  a  re- 
ceiver,244 or  an  order  denying  a  motion  for  retaxation  of 
costs.245 

Orders  relating  to  writ  of  assistance.     An  order  setting 

aside  a  writ  of  assistance  affects  a  substantial  right,246  but  an 
order  granting  a  writ  of  assistance  instead  of  itself  requiring 
delivery  of  possession  does  not  affect  a  substantial  right.247 

236  Hayes  v.  Consolidated  Gas  Co.,  143  N.  Y.  641. 

237  Hussey  v.  Coger,  9  State  Rep.  340. 

238  Security  Bank  of  N.  Y.  v.  National  Bank  of  Commonwealth,  2 
Hun,  287;  Kubie  v.  Miller  Bros.  &  Co.,  31  Misc.  460,  64  N.  Y.  Supp. 
448. 

239  King  v.  Sullivan,  31  App.  Div.  549,  552,  52  N.  Y.  Supp.  130. 

240  Ward  v.  Wordsworth,  1  E.  D.  Smith,  598. 

241  Duncan  v.  DeWitt,  7  Hun,  184;  Colton  v.  Morrissy,  6.  Wkly.  Dig. 
165;  People  v.  New  York  Cent.  R.  Co.,  29  N.  Y.  418. 

242  innes  v.  Purcell,  2  T.  &  C.  538. 
243Hobart  v.   Hobart,   86  N.   Y.   636. 

244  Hanover  Ins.  Co.  v.  Germania  Ins.  Co.,  46  Hun,  308. 

245  Rice  v.  Childs,  28  Hun,  303.  Matter  of  Collis,  78  App.  Div.  495, 
79  N.  Y.  Supp.  801. 

246  Chamberlain  v.  Choles,  35  N.  Y.  477. 

247  Title  Guarantee  &  Trust  Co.  v.  American  Power  &  Const.  Co.,  95 
App.  Div.  192,  88  N.  Y.  Supp.   502. 


§  2555  JUDGMENTS  AND  ORDERS  APPEALABLE.  3637 

Art.   III.     To    Appellate   Division. — A.  From    Supreme    Court. 

§  2553.     Order  in  effect  determining  the  action. 

An  order  which,  in  effect,  determines  the  action,  and  pre- 
vents a  judgment  from  which  an  appeal  might  be  taken,  is  ap- 
pealable.248 

An  order  granting  an  absolute  and  perpetual  writ  of  prohi- 
bition enjoining  the  court  from  proceeding  further  with  a 
pending  action  is  such  an  order,249  as  is  an  order  which  abso- 
lutely and  unconditionally  stays,  without  limit,  the  proceed- 
ings in  an  action,  before  the  entry  of  judgment ;  25°  but  an 
order  made  after  verdict,  giving  leave  to  defendant  to  renew 
a  motion  made  and  denied  before  the  trial,  to  set  aside  an 
order  of  arrest,  and  staying  judgment  on  the  verdict  in  the 
meantime,  does  not,  ' '  in  effect,  determine  the  action. ' ' 251  An 
order  removing  the  cause  to  a  federal  court  does  not  determine 
the  action  and  prevent  a  judgment.252  An  order  dismissing 
an  appeal  from  an  order  allowing  defendants,  as  bail  for  the 
appearance  of  a  party  arrested,  further  time  for  the  surrender 
of  their  principal,  is  such  an  order.253 

§  2554.     Order  declaring  statute  unconstitutional. 

An  order  which  determines  a  statutory  provision  of  the  state 
to  be  unconstitutional  is  appealable,  where  the  determination 
appears  from  the  reasons  given  for  the  decision  thereupon  or 
is  necessarily  implied  in  the  decision.254 

3.  Orders  Made  in  an  Action  by  a  Judge. 

§  2555.     Code  provision. 
An  appeal  may  be  taken  from  an  order  made  in  an  action, 

2*8  Code  Civ.  Proc.  §  1347,  subd.  5. 

249  People  ex  rel.  Egan  v.  Justices  of  N.  Y.  Marine  Ct,  81  N.  Y.  500. 

250  Knowlton  v.  Providence  &  N.  Y.  S.  S.  Co.,  53  N.  Y.  7G,  80;  Ben- 
nett v.  Stevenson,  53  N.  Y.  508. 

251  Miannay  v.  Blogg,  41  N.  Y.  521. 

252  niius  v.  New  York  &  N.  H.  R.  Co.,  13  N.  Y.  (3  Kern.)  597. 

253  Bank  of  Geneva  v.  Reynolds,  33  N.  Y.  160. 

254  code  Civ.  Proc.  §  1347,  subd.  6. 


363S      JUDGMENTS  AND  ORDERS  APPEALABLE.     §  2556 


Art.    III.      To    Appellate   Division. — A.  From    Supreme    Court. 


on  notice,  by  a  judge  or  justice  out  of  court,  in  a  case  where 
the  order  would  be  appealable  if  made  by  the  court.255 

4.  Orders  Made  in  Special  Proceedings. 

§  2556.     Code  provision. 

An  appeal  may  be  taken  to  the  appellate  division  of  the  su- 
preme court  from  an  order  affecting  a  substantial  right  made 
in  a  special  proceeding  at  a  special  term  or  a  trial  term  of  the 
supreme  court;  or  made  by  a  justice  thereof,  in  a  special  pro- 
ceeding instituted  before  him  pursuant  to  a  special  statutory 
provision,250  or  instituted  before  another  judge,  and  trans- 
ferred to  or  continued  before  him.257 

The  last  clause,  it  seems,  relates  only  to  a  proceeding  trans- 
ferred from  one  judge  to  another  in  the  same  court,  i.  e.,  the 
supreme  court.257a 

Throop's  note  to  this  title  states  that  it  "contains  only  gen- 
eral provisions  relating  to  appeals  in  special  proceedings,  leav- 
ing those  which  apply  exclusively  to  particular  kinds  of  special 
proceedings"  to  be  treated  of  in  connection  with  the  Code 
chapters  devoted  to  particular  special  proceedings.  Whether 
an  order  in  any  particular  special  proceeding  is  appealable 
often  depends  on  the  statute  regulating  such  special  proceed- 
ing. 

This  Code  provision  does  not  confer  the  right  to  appeal  from 
an  order  in  a  case  where  the  statute  expressly  prescribes  that 
the  order  shall  be  final.257b  A  statutory  provision  that  the  order 
"shall  be  final  and  conclusive"  has  been  held  to  preclude  an 

255  code  Civ.  Proc.  §  1348. 

236  An  order  to  investigate  the  financial  affairs. of  a  town  is  appeal- 
able as  an  order  made  by  a  judge  "pursuant  to  a  special  statutory 
provision."  Matter  of  Town  of  Hempstead,  32  App.  Div.  6,  52  N.  Y. 
Supp.  618. 

257  Code  Civ.  Proc.  §  1356.  Order  which  affirms  an  apportionment 
and  assessment  which  constitutes  a  lien  on  appellant's  real  estate, 
and  under  which  it  may  be  sold,  affects  a  substantial  right.  Matter 
of  Klock,  30  App.  Div.  24,  28,  51  N.  Y.  Supp.  897. 

257a  Matter  of  Rafferty,  14  App.  Div.  55,  43  N.  Y.  Supp.  760.       ; 

257b  Code  Civ.  Proc.  §  1361. 


§  2550  JUDGMENTS  AND  ORDERS  APPEALABLE.  3639 

Art.    III.     To    Appellate   Division. — A.  From   Supreme    Court. 

appeal,2570  but  the  right  to  review  the  decision  in  a  matter  af- 
fecting substantial  rights  must  be  deemed  to  exist  unless  the  in- 
tent to  destroy  it  is  expressed  with  great  clearness ; 257d  and  it 
has  been  held  that  a  provision  in  the  statute  that  "the  decision 
of  the  county  judge  shall  be  final"  does  not  preclude  an  appeal 
to  the  appellate  division. 257e  Furthermore,  it  seems  that  a  stat- 
ute making  certain  orders  final  and  thereby. restricting  the  right 
to  appeal  does  not  apply  when  the  court  had  no  jurisdiction  to 
make  the  order  appealed  from.257f 

The  order,  to  be  appealable  need  not  be  a  final  order,257g  and 
it  is  immaterial  that  the  granting  or  refusing  of  the  order  is.  dis- 
cretionary.25711 

An  order  vacating  a  judgment  entered  by  confession  affects 
a  substantial  right  in  a  special  proceeding,2571  within  this  Code 
section,  as  does  an  order  striking  the  name  of  a  voter  from  the 
registry  list,257-5  or  an  order  denying  a  motion  for  a  retaxation 
of  costs,257k  or  an  order  of  reference  in  certiorari  proceedings 
to  review  an  assessment  where  the  writ  was  issued  without 
jurisdiction.2571 

The  fact  that  a  party  has  the  right,  in  the  first  instance,  to 
make  an  application  either  to  a  special  term  of  the  supreme 
court  or  to  the  appellate  division,  and  elects  to  apply  to  the 
special  term,  does  not  preclude  an  appeal  from  such  determina- 
tion to  the  appellate  division.257"1 

257c  Matter  of  (jentral  Park  Commissioners,  50  N.  Y.  493;  Matter  of 
Canal  &  Walker  Streets,  12  N.  Y.  406;  Matter  of  New  York  Central  R. 
Co.,  11  N.  Y.  276. 

257d  Matter  of  Brady,  69  N.  Y.  215,  220. 

257e  Matter  of  Anderson  v.  School  Dist.  No.  15,  89  App.  Div.  231,  85 
N.  Y.  Supp.  943. 

257f  Matter  of  Tuthill,  36  App.  Div.  492,  494,  55  N.  Y.  Supp.  657. 

257g  Hart  v.  Johnson,  43  Hun,  505. 

257h  Matter  of  Commercial  Bank,  35  App.  Div.  224,  54  N.  Y.  Supp.  722; 
Matter  of  Tilden,  56  App.  Div.  277,  67  N.  Y.  Supp.  879;  Matter  of  Light, 
30  App.  Div.  50,  51  N.  Y.  Supp.  743. 

237i  Belknap  v.  Waters,  11  N.  Y.  477. 

257j  Matter  of  Ward,  29  Abb.  N.  C.  187,  198,  20  N.  Y.  Supp.  606. 

257k  Matter  of  Collis,  78  App.  Div.  495,  79  N.  Y.  Supp.  801. 

2571  People  ex  rel.  Rochester  Lamp  Co.  v.  Feitner,  65  App.  Div.  224, 
228,  72  N.  Y.  Supp.  641. 

257m  Matter  of  Light,  30  App.  Div.  50,  52,  51  N.  Y.  Supp.  743. 


3C40  JUDGMENTS  AND  ORDERS  APPEALABLE.  §  2558 

Art.    111.     To   Appellate   Division. — A.  From   Supreme    Court. 

§  2557.     Orders  in  mandamus  proceedings. 

An  appeal  from  an  order  granting  a  peremptory  writ  of  man- 
damus, where  an  alternative  writ  was  not  previously  issued, 
must  be  taken  as  from  a  final  order  made  in  a  special  pro- 
ceeding; but  an  appeal  from  a  final  order  made  on  an  alterna- 
tive mandamus  must  be  taken  as  an  appeal  from  a  judg- 
ment.'-58 

An  order  directing  an  alternative  writ  of  mandamus  does 
not  affect  a  substantial  right  so  as  to  be  appealable,259  though 
whefe  the  order  was  peremptory  except  as  to  a  portion  of  the 
relief  demanded,  the  questions  raised  were  held  to  be  properly 
reviewable.200 

§  2558.     Orders  in  contempt  proceedings. 

An  order  punishing  for  contempt  is  appealable  201  as  is  an 
order  adjudging  a  party  guilty  of  contempt  in  having  violated 
an  injunction  and  directing  a  reference  to  ascertain  the  dam- 
ages sustained,262  or  an  order  denying  a  motion  on  notice  for 
an  order  to  show  cause  in  contempt  proceedings,263  or  an  order 
denying  a  motion  to  vacate  an  order  adjudging  a  person  to 
be  in  contempt,264  but  an  appeal  from  an  order  committing  for 
contempt,  unless  the  person  adjudged  guilty  performs  speci- 
fied acts,  is  premature.265 

2ss  Code  Civ.  Proc.  §  2087. 

259  Such  an  order  is  in  the  nature  of  an  order  to  show  cause.  People 
v.  Lumb,  6  App.  Div.  26,  39  N.  Y.  Supp.  514;  People  ex  rel.  Levenson, 
v.  O'Donnel,  99  Div.  253,  90  N.  Y.  Supp.  961. 

260  Matter  of  Goodwin,  30  App.  Div.  418,  51  N.  Y.  Supp.  355. 

26i  Richie  v.  Bedell,  22  Wkly.  Dig.  563;  Smith  v.  Drury,  22  Wkly. 
Dig.  3.  Brinkley  v.  Brinkley,  47  N.  Y.  40.  It  is  immaterial  that  pun- 
isment  is  for  a  criminal  contempt.  People  ex  rel.  Negas  v.  Dwyer, 
90  N.  Y.  402.  It  was  formerly  held  by  the  court  of  appeals  that  an 
order  "refusing"  to  punish  for  contempt  was  not  appealable.  Carring- 
ton  v.  Florida  R.  Co.,  52  N.  Y.  583. 

262  in  re  De  Long,  25  Civ.  Proc.  R.  363. 

263  People  ex  rel.  Piatt  v.  Board  of  State  Canvassers,  74  Hun,  179, 
26  N.  Y.  Supp.  346. 

264  Wolf  v.  Buttner,  6  Misc.  119,  26  N.  Y.  Supp.  52. 

265  The  final  order  should  be  awaited  and  an  appeal  taken  from  that. 


§  2559  JUDGMENTS  AND  ORDERS  APPEALABLE.  3641 

Art.    III.     To    Appellate   Division. — A.   From   Supreme    Court. 

§  2559.     Orders  in  condemnation  proceedings. 

A  condemnation  proceeding  is  a  special  proceeding.  In  1890 
there  was  added  to  the  Code  a  chapter  (23)  governing  the 
proceedings  for  the  condemnation  of  real  property.  This  Code 
•chapter  provides  for  a  "judgment"  on  the  trial  of  the  right 
to  condemn  and  for  the  appointment  of  commissioners,  if  the 
decision  is  in  favor  of  plaintiff,  to  ascertain  the  compensation 
to  be  made  to  the  owners  for  the  property  to  be  taken.  It  will 
be  noticed  that  a  "judgment"  is  provided  for  in  a  special  pro- 
ceeding, such  judgment  being  in  the  nature  of  an  interlocutory 
judgment.  After  the  commissioners  make  a  report,  a  motion 
for  its  confirmation  is  made  and,  if  the  report  is  confirmed, 
a  "final  order"  is  entered  directing  that  compensation  be 
made  to  the  owners  according  to  the  report  and  that  on 
payment  of  such  compensation  the  plaintiff  shall  be  entitled 
to  enter  into  the  possession  of  the  property  condemned.  Sec- 
tion 3375  provides  for  an  appeal  from  the  "final  order"  and 
authorizes  a  review  of  the  "judgment"  and  proceedings 
antecedent  thereto  if  the  appellant  states  in  his  notice  of 
appeal  that  they  will  be  brought  up  for  review,  ainl  excep- 
tions shall  have  been  taken,  and  a  case,  or  a  case  and  ex- 
ceptions shall  have  been  made,  settled,  and  allowed.  Sec- 
tion 3376,  authorizes  an  appeal  from  the  "judgment"  where 
it  is  entered  "in  favor  of  the  defendant,"  but  no  appeal 
from  the  "judgment"  is  provided  for  where  it  is  in  favor 
of  the  plaintiff.  There  being  no  provision  of  the  statute 
permitting  an  appeal  from  a  judgment  in  favor  of  the  plaintiff 
condemning  lands  and  appointing  commissioners  to  ascertain 
the  compensation  to  be  made  to  the  owner,  defendant's  remedy 
is  to  wait  and  appeal  from  the  final  order  as  authorized  by 

Greite  v.  Henricks,  71  Hun,  11,  24  N.  Y.  Supp.  545.  On  motion  to  pun- 
ish a  person  for  contempt  for  failing  to  appear  and  submit  to  an  ex- 
amination pursuant  to  an  order  of  a  justice,  an  order  requiring  such 
party  to  appear  and  submit  to  an  examination,  otherwise  the  commit- 
ment to  issue,  was  not  a  final  order,  and  no  appeal  therefrom  would 
lie.  Siegel  v.  Solomon,  92  N.  Y.  Supp.  238;  Field  v.  White,  102  App. 
Div.  365.  92  N.  Y.  Supp.  848.  Contra,  Rupert  v.  Lee,  101  App.  Div.  492, 
92  N.  Y.  Supp.  75. 


3642  JUDGMENTS  AND  ORDERS  APPEALABLE.  §  2561 

Ait.    III.     To   Appellate    Division.— A.  From    Supreme    Court. 

section  3375  of  the  Code,  when  the  judgment  may  be  re- 
viewed.-1'"'' It  is  held,  however,  that  section  3375  of  the  Code 
which  provides  for  an  appeal  to  the  appellate  division  from 
the  "final  order"  was  not  intended  to  limit  appeals  to  final 
eiders  only,  but  that  when  so  taken  such  appeals  should  have 
a  special  and  particular  effect.207  An  order  confirming  268  or 
selling  aside2"''  or  sending  back  for  further  consideration,27* 
the  report  of  the  commissioners,  is  appealable. 

§  2560.     Orders  relating  to  writ  of  prohibition. 

An  order  granting  a  writ  of  prohibition  affects  a  substantial 
right  so  as  to  be  appealable,271  as  does  an  order  setting  aside 
an  alternative  writ  of  prohibition  commanding  a  referee  to  re- 
frain from  farther  proceedings  in  the  examination  of  a  party 
before  trial.-72 

§  2561.     Orders  in  habeas  corpus  proceedings. 

An  appeal  may  be  taken  from  an  order  refusing  to  grant  a 
writ  of  habeas  corpus,  or  a  writ  of  certiorari,  to  inquire  into 

266  Erie  R.  Co.  v.  Steward,  59  App.  Div.  187,  69  N.  Y.  Supp.  57,  fol- 
lowed in  Village  of  St.  Johnsville  v.  Smith,  61  App.  Div.  380,  70  N.  Y. 
Supp.  880*  Prior  to  1890,  it  was  held  that  the  "order"  appointing  com- 
missioners was  appealable.  Matter  of  Broadway  &  Seventh  Ave.  R. 
Co.,  69  Hun,  275,  23  N.  Y.  Supp.  609;  Matter  of  South  Market  St.,  80 
Hun,  246,  29  N.  Y.  Supp.  1030;  Matter  of  City  of  Utica,  73  Hun.  256, 
26  X.  Y.  Supp.  564. 

267  Manhattan  R.  Co.  v.  O'Sullivan,  6  App.  Div.  571,  40  N.  Y.  Supp. 
326.  See  Matter  of  City  of  Rochester,  102  App.  Div.  99,  92  N.  Y.  Supp. 
475. 

26s  Matter  of  City  of  Rochester,  24  App.  Div.  383,  48  N.  Y.  Supp. 
764. 

26'9  Manhattan  R.  Co.  v.  O'Sullivan,  6  App.  Div.  571,  46  N.  Y.  Supp. 
326. 

270  Order  sending  report  back  to  commissioners  appointed  in  con- 
demnation proceedings  to  have  stated  other  material  facts  affects  a 
substantial  right.  Board  of  Water  Com'rs  v.  Shutts,  25  App.  Div.  22, 
49  N.  Y.  Supp.  319. 

27a  People  ex  rel.  Egan  v.  Justices  of  N.  Y.  Marine  Ct,  81  N.  Y.  500. 
See,  also.  Code  Civ.  Proc.  §  2101. 

-'■-  People  ex  rel.  Morse  v.  Nussbaum,  55  App.  Div.  245,  67  N.  ¥. 
Supp.  492. 


§  2562  JUDGMENTS  AND  ORDERS  APPEALABLE.  3643 

Art.    III.     To   Appellate    Division. — A.   From   Supreme    Court. 


the  cause  of  detention,  or  from  a  final  order,  made  upon  the 
return  of  such  a  writ,  to  discharge  or  remand  a  prisoner,  or  to 
dismiss  the  proceedings.  When  a  final  order  is  made,  to  dis- 
charge a  prisoner,  upon  his  giving  bail,  an  appeal  therefrom 
may  be  taken,  before  bail  is  given;  but  where  the  appeal  is 
taken  by  the  people,  the  discharge  of  the  prisoner  upon  bail 
shall  not  be  stayed  thereby.  An  appeal  does  not  lie,  from  an 
order  of  the  court  or  judge,  before  which  or  whom  the  writ  is 
made  returnable,  except  as  prescribed  in  this  section.273 

It  follows  that  no  appeal  will  lie  from  an  order  of  reference 
to  aid  the  information  of  the  court,  where  made  in  such  pro- 
ceeding.-74 

§  2562.     Orders  in  supplementary  proceedings. 

Subject  to  the  Code  rule  laid  down  in  a  preceding  volume,275 
the  following  orders,  inter  alia,  have  been  held  appealable  as 
affecting  a  substantial  right:  Order  refusing  to  appoint  a  re- 
ceiver ; 27G  order  refusing  to  dismiss  the  proceedings ; 27T  order 
denying  a  motion  to  direct  the  application  of  property  or 
money  to  the  payment  of  the  judgment ; 27S  order  adjudging 
a  third  person  guilty  of  a  contempt  and  ordering  a  reference 
to  determine  the  damages  sustained ;  279  order  for  sale  of  a 
cause  of  action  by  a  receiver  in  supplementary  proceedings.280 
But  an  order  which  merely  requires  a  judgment  debtor  to 
answer  a  question  as  to  the  name  of  his  employer  does  not 
affect  a  substantial  right  so  as  to  be  appealable.281 

273  Code  Civ.  Proc.  §  2058;  Matter  of  Larson,  96  N.  Y.  381.  See,  also, 
Matter  of  Scrafford,  59  Hun,  320,  12  N.  Y.  Supp.  943. 

27-t  People  ex  rel.  Keator  v.  Moss,  6  App.  Div.  414,  39  N.  Y.  Supp 
690. 

27S  Volume  3,  pp.  3267-3269. 

270Dollard  v.  Taylor,  33  Super.  Ct.  (1  J.  &  S.)  496. 

277  Robens  v.  Sweet,  48  Hun,  436,  1  N.  Y.  Supp.  839. 

278  Billington  v.  Billington,  50  Hun,  602,  4  N.  Y.  Supp.  504. 

279  Hart   v.   Johnson,    43    Hun,    505. 

280  Matter  of  Patterson,  12  App.  Div.  123,  42  N.  Y.  Supp.  495. 
28i  Milliken  v.   Thomson,  54   Super.   Ct.    (22  J.  &  S.)    393. 


3044  JUDGMENTS   AND   ORDERS   APPEALABLE.  §  2565 

Art.   III.     To  Appellate  Division. 

(B)   FROM    COURT    OTHER   THAN    SUPREME    OR    SURROGATE'S 

COURT. 

§  2563.     Scope  of  sub-article. 

This  sub-article  will  treat  of  the  judgments  and  orders  ap- 
pealable to  the  appellate  division  from  the  county  court  and 
other  courts  of  record  other  than  the  supreme  court,  except 
that  the  special  statutory  provisions  as  to  appeals  from  a  sur- 
rogate's court  or  from  municipal  courts  will  not  be  noticed. 


§  2564.     Final  judgments. 

A  final  judgment  rendered  by  a  county  court  or  any  other 
court  of  record  possessing  original  jurisdiction,  where  an  ap- 
peal therefrom  to  a  court  other  than  the  supreme  court  is  not 
expressly  given  by  statute,  is  appealable  to  the  appellate  di- 
vision.282 On  the  appeal  from  such  judgment,  an  order  grant- 
ing or  refusing  a  new  trial  on  any  of  the  Code  grounds  for 
granting  a  new  trial  on  the  judge's  minutes  is  reviewable,283 
provided  the  intention  to  review  the  order  is  specified  in  the 
notice  of  appeal. 

This  Code  section  authorizes  appeals  from  judgments  en- 
tered in  the  county  court  on  affirming  or  reversing  judgments, 
or  final  orders  in  special  proceedings,  rendered  in  a  justice's 
court.284  A  judgment  of  the  county  court  entered  on  the  re- 
port of  a  referee  is  appealable,  under  this  Code  section,  with- 
out first  moving  for  a  new  trial.285  An  appeal  from  a  decree 
of  a  county  judge  on  the  final  accounting  of  an  assignee  of  an 
insolvent  debtor  is  an  appeal  from  a  final  judgment.280 

§  2565.     Interlocutory  judgments. 

An  appeal  from  an  interlocutory  judgment  is  permissible 
only  when  that  judgment  is  rendered  in  the  supreme  court. 

282,  283  Code  Civ.  Proc.  §  1340. 

284  Warner    v.    Henderson,    25    Hun,    303. 

285  Kilmer  v.  O'Brien,  13  Hun,  224;    Cook  v.  Darrow,   22   Hun,   306 
28G  Matter  of  Beckwith,  15  Hun,   326. 


§  2566  JUDGMENTS   AND   ORDERS   APPEALABLE.  3645 


Art.  III.     To  Appellate  Division. 


No  appeal  can  be  taken  from  an  interlocutory  judgment  ren- 
dered by  a  county  court.287 

§  2566.     Orders  in  actions. 

An  appeal  may  be  taken  to  the  appellate  division,  from  an 
order  "affecting  a  substantial  right,"  made  by  the  court  or 
a  judge,  in  an  action  brought  in,  or  taken  by  appeal  to,  a  court 
of  record  specified  in  section  1340  of  the  Code.288 

A  holding  of  the  court  of  appeals  to  the  effect  that  appeals 
to  the  supreme  court  from  orders  of  the  county  court  were 
confined  to  actions  originating  in  the  county  court  was  made 
nugatory  by  the  amendment  of  section  1342  in  1881,  which  ex- 
tended the  jurisdiction  of  the  appellate  division  to  cases  taken 
by  appeal  to  the  county  court.280  In  other  words,  an  order 
rhade  in  an  action  brought  in  a  justice's  court  is  appealable  to 
the  appellate  division,  after  an  appeal  is  taken  to  the  county 
court,  the  same  as  an  order  made  in  an  action  commenced  in 
the  county  court. 

The  order,  to  be  appealable,  must  be  one  made  in  an  action. 
It  follows  that  no  appeal  lies  from  an  order  of  the  county  court 
granting  or  refusing  leave  to  issue  execution  on  a  justice's 
judgment  after  a  transcript  has  been  filed  with  the  county 
clerk.200 

Having  already  considered  what  is  an  order  "affecting  a  sub- 
stantial right,"  201  the  question  remains  as  to  whether  an  order 
involving  the  discretion  of  the  lower  court  is  appealable.  The 
weight  of  authority  is  that  a  discretionary  order  is  not  ap- 
pealable, on  the  theory  that  the  discretion  c*  one  court  is  not 

287Russ  v.  Maxwell,  94  App.  Div.  107,  116,  87  N.  Y.  Supp.  1077, 
where  the  appeal  was,  however,  considered  on  the  merits  on  a  stip- 
ulation that  the  appeal  he  treated  as  a  motion  for  a  new  trial  on 
exceptions. 

zss  Code  Civ.  Proc.  §  1342. 

289  Kilts  v.  Neahr,  101  App.  Div.  317,  91  N.  Y.  Supp.  945;  Kincaid 
v.  Richardson,  25  Hun,  237. 

290Townsend  v.  Tolhurst,  57  Hun,  40,  10  N.  Y.  Supp.  378;  Kincaid 
v.    Richardson,    25    Hun,    237. 

29i  See  ante,  §  2552. 


364:6  JUDGMENTS   AND   ORDERS   APPEALABLE.  g  2567 


Art.  III.     To  Appellate  Division. 


reviewable  by  another  court,292  but  the  later  cases  incline  to 
the  rule  that  such  orders  are  appealable  if  they  affect  a  sub- 
stantial right.203  It  is  submitted  that  such  orders  should  be 
appealable  since  no  good  reason  is  apparent  why  the  exercise 
of  discretion  by  a  judge  of  the  supreme  court  should  be  re- 
viewable by  appeal  while  the  exercise  of  discretion  by  a  minor 
court  be  held  nonreviewable  by  the  appellate  division. 

An  order  affirming  a  judgment  is  not  appealable  since  the 
appeal  should  be  from  the  judgment  entered  on  such  order.294 

An  order  of  the  county  court  dismissing  an  appeal  from  a 
justice  of  the  peace  affects  a  substantial  right  so  as  to  be  ap- 
pealable.205 

§  2567.     Orders  in  special  proceedings. 

An  appeal  may  be  taken  to  the  appellate  division  from  an 
order  affecting  a  substantial  right  made  by  a  court  of  record, 
possessing  original  jurisdiction,  or  a  judge  thereof,  in  a  special 
'proceeding  instituted  in  that  court,  or  before  a  judge  thereof, 
pursuant  to  a  special  statutory  provision,  or  instituted  before 
another  judge  and  transferred  to,  or  continued  before,  the 
judge  who  made  the  final  order.  But  this  section  does  not 
apply  to  a  case,  where  an  appeal  from  the  order,  to  a  court, 
other  than  the  appellate  division  is  expressly  given  by  stat- 
ute.296 

292  stebbins  v.  Cowles,  30  Hun,  523;  Myers  v.  Riley,  36  Hun,  20; 
Kugeltnan  v.  Rhodes,  36  Hun,  269;  Wright  v.  Chase,  77  Hun,  90, 
28  N.  Y.  Supp.  310.  Order  granting"  or  refusing  new  trial.  Myers 
v.  Riley,  36  Hun,  20;  Bantleon  v.  Meier,  81  Hun,  162,  30  N.  Y.  Supp. 
706;  Breichbeil  v.  Powles,  60  Hun,  585,  15  N.  Y.  Supp.  465. 

--■Kilts  v.  Neahr,  101  App.  Div.  317,  91  N.  Y.  Supp.  945;  King  v. 
Sullivan,  31  App.  Div.  549,  52  N.  Y.  Supp.  130;  Cramer  v.  Lovejoy. 
41  Hun,  581;  Kubie  v.  Miller  Bros.  &  Co.,  31  Misc.  460,  64  N.  Y. 
Supp.   448;    Clark  v.   Eldred,   54   Hun,   5,   7   N.   Y.   Supp.   95. 

294  Waltenberg  v.  Bernhard,  27  Misc.  794,  58  N.  Y.  Supp.  325; 
Pasternak  v.  Weiss,  29  Misc.  314,  60  N.  Y.  Supp.  494;  Dierig  v.  Cal- 
lahan 35  Misc.  30,  70  N.  Y.   Supp.  210. 

295  Hammond  v.  Carpenter,  29  How.  Pr.  43;  Horr  v.  Seaton,  18 
Wkly.  Dig.  510;    Kuntz  v.  Licht.  8  Hun,  14. 

-"•Code  Civ.  Proc.  §  1357;  Ithaca  Agr.  Works  v.  Eggleston,  107 
N.  Y.  272;  Matter  of  Klock,  30  App.  Div.  24,  51  N.  Y.  Supp.  897. 


§  2568  JUDGMENTS   AND   ORDERS   APPEALABLE.  3G47 


Art.   IV.     To   the  Appellate  Term. 


This  section  applies,  inter  alia,  to  appeals  from  orders  in  sup- 
plementary proceedings.297 

The  cases  construing  section  1356  of  the  Code  and  this 
section  are  set  forth  in  a  preceding  paragraph.298 

No  appeal  lies  to  the  appellate  division,  except  where  spe- 
cial provision  is  made  therefor,  from  an  order  of  the  county 
court  made  on  appeal  from  an  order  in  a  special  proceeding  in- 
stituted before  a  justice  of  the  peace.299 

ART.  IV.     TO  THE  APPELLATE  TERM. 

§  2568.     General  considerations. 

Appeals  from  final  judgments  of  inferior  and  local  courts 
which,  before  the  abolition  of  the  superior  courts  and  court  of 
commons  pleas  by  the  present  Constitution,  were  heard  in  said 
court  of  common  pleas  for  New  York  city  and  in  the  superior 
court  of  Buffalo,  may  now  be  taken  to  the  supreme  court.300 
In  other  words  appeals  from  the  city  court  of  New  York,  the 
municipal  courts  of  the  boroughs  of  Manhattan  and  the  Bronx, 
and  the  municipal  court  of  Buffalo,  may  be  taken  to  the  su- 
preme court 301  to  be  heard  by  justices  of  the  appellate  division 
appointed  by  the  appellate  division.302  In  the  first  judicial 
district  these  justices  so  appointed  form  what  is  known  as  the 
appellate  term. 

This  article  will  not  undertake  a  consideration  of  what 
judgments  or  orders  of  the  said  courts  are  appealable,  except 
those  of  the  city  court  of  New  York.  The  Greater  New  York 
charter  fixes  the  right  to  appeal  from  the  municipal  courts  of 

-'■>'  Order  directing  sale  of  property  by  receiver.  Matter  of  Patter- 
sou,  12  App.  Div.  123,  42  N.  Y.  Supp.  495.  Order  vacating  order  for 
examination.      Schenck   v    Irwin.   60   Hun,    361,    15    N.    Y.    Supp.    55. 

298  See  ante,  §  2556. 

299  Matter  of  Rafferty  14  App.  Div.  55,  43  N.  Y.  Supp.  760,  followed 
in  Matter  of  Soop,  106  App.  Div.  341,  94  N.  Y.  Supp.  463,  where  appeal 
from  an  order  of  the  county  court  reversing  a  final  order  in  summary 
proceedings  was  dismissed. 

3oo,  sot  Code  Civ.  Proc.  §  1340. 
302  Code  Civ.  Proc.  §  1344. 


3648  JUDGMENTS   AND   ORDERS   APPEALABLE.  §2569' 


Art.   IV.     To   the  Appellate  Term. 


New  York  and  the  Buffalo  charter  fixes  the  right  to  appeal 
from  the  municipal  court  of  Buffalo.  Said  courts  are  not 
courts  of  record,  and  hence  a  consideration  of  appeals  there- 
from is  not  within  the  scope  of  this  work. 

§  2569.     Appeal  from  City  Court  of  New  York. 

Prior  to  1902  there  was  a  general  term  of  the  city  court  to 
which  appeals  could  be  taken  but  now  that  court  is  abolished 
and  a  direct  appeal  to  the  supreme  court  is  provided  for. 

From  final  judgments.     An  appeal  to  the  supreme  court 

may  be  taken  from  a  final  judgment  rendered  in  the  city  court 
of  New  York,  in  a  case  where  an  appeal  may  be  taken  to  the 
appellate  division  of  the  supreme  court,  from  a  final  judgment 
rendered  in  the  supreme  court,  as  prescribed  in  section  1346 
of  the  Code.303 

From  interlocutory  judgments.  An  appeal  to  the  su- 
preme court  may  be  taken  from  an  interlocutory  judgment  of 
the  city  court  of  New  York  and  on  such  an  appeal  the  supreme 
court  may  review  any  exercise  of  discretion  by  the  court  or 
judge  below.304 

From  orders.     An  appeal  to  the  supreme  court  may  be 

taken  from  an  order  made  at  chambers,  or  at  a  special  or  trial 
term,  of  the  city  court  of  New  York,  or  from  an  order  made 
by  a  judge  thereof  out  of  court,  in  a  case  where  an  appeal  may 
be  taken  to  the  appellate  division  from  an  order  of  the  su- 
preme court,  as  set  forth  in  sections  1317  and  1348  of  the 
Code.305  Orders  resting  in  discretion,  if  otherwise  appealable,, 
may  be  brought  up  for  review,  since  the  Code  provision  ex- 
pressly provides  that  the  supreme  court  "shall  have  full  power 
to  review  any  exercise  of  discretion  by  the  court  or  judge  be- 
low.300 The  decisions  prior  to  1902  holding  that  discretionary 
orders  were  not  appealable  307  no  longer  state  the  law. 

303  code    Civ.    Proc.    §    318S,    as   amended    in    1902. 
so*  Code  Civ.  Proc.  §§  3188,  3189,  as  amended  in  1902. 
305,  3oe  Code  Civ.  Proc.  §  3189,  as  amended  in  1902. 
so?  Brown  v.   Georgi,   26   Misc.   128,   56   N.   Y.   Supp.   923;    Streep  v. 
McLoughlin,  36  Misc.   165,  72  N.   Y.   Supp.   1061. 


CHAPTER  III. 

WHO  MAY  APPEAL. 

Parties,  §  2570. 

Party  in  default. 

Successful  party. 

Party  whose  interest  has  terminated. 

One  of  several  parties. 

Executors  and  administrators. 

Trustees. 

Corporations. 

Officers  or  stockholders  of  corporation. 

Receivers. 

Public  officers. 

Creditors. 

Parties  to  condemnation  proceedings. 

Parties  to  election  contests. 

Persons  entitled  to  be  substituted  as  parties,  §  2571. 
Persons  not  parties,  §  2572. 

Purchasers  at  judicial  sales. 

Witnesses. 

Receiver. 

Referee. 

Attorneys. 

Sureties. 

Persons  examined  in  supplementary  proceedings. 

Person  who  has  not  appealed  to  intermediate  court,  §  257c 


§  2570.    Parties. 

The  Code  provides  that  "a  party  aggrieved'  may  appeal 
*  *  *  except  where  the  judgment  or  order,  of  which  he 
complains,  was  rendered  or  made  upon  his  default. " x    If  the 


i  Code  Civ.  Proc.  §  1294.  Whether  word  "party"  applies  only  to  a 
party  to  the  action,  see  next  section.  That  one  unnecessarily  joined 
as  a  party  may  appeal,  see  Thomson  v.  Fairfield,  50  State  Rep.  472v 
21    N.   Y.   Supp.   712. 

N.  Y.  Prao—  229. 


3650  WHO  MAY  APPEAL.  §  2570 


Parties. 


person  who  desires  to  appeal  is  a  party  to  the  action,  it  is 
necessary  only  that  he  be  "aggrieved,"  provided  the  judg- 
ment or  order  was  not  made  on  his  default.  In  other  words, 
a  party  cannot  appeal  from  a  judgment  or  order  which  in  no 
way  injures  or  jeopardizes  him  or  his  property.2  Persons  who 
would  gain  nothing  by  a  reversal  are  not  ' '  aggrieved. ' ' 3  The 
party  appealing  must  have  an  interest  in  the  controversy,4 
and  that  interest  must  be  actual  and  practical,  as  distinguished 
from  a  merely  theoretical  interest  in  the  controversy ; 5  but  a 
property  or  pecuniary  interest  is  not  necessary.6  A  party  may 
be  said  to  be  aggrieved  by  any  order  which  affects  its  standing 
in  court  in  any  way,  though  it  involves  only  the  development 
of  such  information  as  may  be  possessed  by  one  of  its  officers.7 
A  party  to  a  special  proceeding  cannot  appeal  in  behalf  of 
others  interested.8 

A  party,  an  action  against  whom  is  dismissed,  is  not  ag- 
grieved.9 So  an  additional  defendant  brought  in  by  an  order 
vacating  a  judgment  against  a  sole  defendant,  and  allowing 
an  amendment  of  the  summons  and  complaint,  is  not  aggrieved 
by  the  order.10  So  a  defendant  joined  as  a  party  merely  to 
enjoin  him  pending  the  action  cannot  appeal  from  a  judgment 
on  the  merits  which  does  not  affect  him.11  And  a  person  sub- 
stituted as  a  defendant  cannot  appeal  from  the  order  of  sub- 

sBullard  v.  Kenyon,  78  Hun,  26,  29  N.  Y  Supp.  772;  Miller  v.  Fiss, 
21  Misc.  66,  46  N.  Y.  Supp.  967. 

s  Hyatt  v.  Dusenbury,   106   N.   Y.   663. 

*,  e  Bryant  v.  Thompson,  128  N.  Y.  426,  436. 

s  People  ex  rel.  Burnham  v.  Jones,  110  N.  Y.  509;  People  ex  rel. 
Thomas  v.   Sackett,  15  App.  Div.   290,  44  N.   Y.   Supp.   593. 

i  Sherman  v.  Beacon  Const.  Co.,  58  Hun,  143,  11  N.  Y.  Supp.  369, 
in  which  case  the  defendant,  a  corporation,  appealed  from  an  order 
denying  a  motion  to  vacate  an  order  directing  its  chairman  to  ap- 
pear before  a  referee  for  examination  to  enable  plaintiff  to  amend 
his   complaint. 

s  Matter  of  City  of  New  York,  77  App.  Div.  146,  78  N.  Y.  Supp. 
1030. 

9  Jerry  v.  Blair,  62  App.  Div.  590,  71  N.  Y.  Supp.  189. 

io  Grant  v.  Hubbell,  34  Super.  Ct.   (2  J.  &  S.)   224. 

ii  Wheat  v.  Rice,   15  Wkly.  Die:.   104. 


§  2570  WHO  MAY  APPEAL.  3651 


Parties. 


stitution  since  he  is  not  aggrieved  thereby.12  But  the  plaintiff 
in  an  injunction  action  may  appeal  from  an  order  fixing  dam- 
ages in  a  proceeding  against  the  sureties,  since  he  is  ultimately 
liable  to  the  sureties  for  any  money  they  may  be  compelled  to 
pay.13  A  plaintiff  who  has  appealed  from  an  order  granting 
defendant  a  new  trial  cannot  obtain  a  dismissal  of  defendant's 
appeal  from  the  judgment.14 

Party  in  default.  A  party  cannot  appeal  from  a  judg- 
ment or  order  made  on  his  default.  The  Code  so  provides  15 
and  it  was  so  held  prior  to  the  Codes  16  on  the  ground  that  the 
party  complaining  was  not  aggrieved.  The  rule  applies  to  all 
judicial  proceedings  where  an  appeal  is  allowed.17  It  applies 
to  a  default  on  the  part  of  plaintiff,18  as  well  as  to  a  default 
by  defendant.  It  applies  though  the  complaint  does  not  state 
a  cause  of  action.19  So  a  judgment  by  default  in  the  appellate 
division  is  not  appealable  to  the  court  of  appeals.20  But  an 
order  for  an  extra  allowance  may  be  appealed  from,  though 
taken  by  default  of  the  party  in  appearing  at  the  trial,  where 
the  court  has  no  power  to  grant  such  allowance,  since  the 
notice  that  such  an  allowance  would  be  asked  for  would  not 
be  implied  from  the  notice  of  trial.21 

Where  defendant  in  a  divorce  suit  appears  but  does  not 
answer,  though  he  does  file  exceptions  to  the  referee's  report, 

12  Abbot  v.  New  York,  L.  E.  &  W.  R.  Co.,  120  N.  Y.  652. 

13  Harter  v.  Westcott's  Exp.  Co..  155  N.  Y.  211. 
"Weeks  v.  Coe,  36  App.  Div.  339,  55  N.  Y.  Supp.  263. 

is  Code  Civ.  Proc.  §  1294;  New  York  Co-op.  Bldg.  &  Loan  Ass'n 
v.  Brennan,  62  App.  Div.  610,  70  N.  Y.  Supp.  916;  Oliver  v.  French, 
80  Hun,  175,  30  N.  Y.  Supp.  52;  Park  v.  Park,  24  Misc.  372,  53  N.  Y. 
Supp.  677.  Appeal  from  order  directing  a  writ  of  assistance  dis- 
missed where  defendants  were  in  default  in  not  showing  cause,  if 
any  existed,  why  the  writ  should  not  issue,  in  Title  Guarantee  & 
Trust  Co.  v.  American  Power  &  Const.  Co.,  95  App.  Div.  192.  88  N. 
Y.   Supp.   502. 

io  Flake  v.  Van  Wagenen,  54  N.  Y.  25. 

it  Adams    v.    Oakes,    20    Johns.    282. 

is  Delmar  v.  Delmar,  65  App.  Div.  582,  72  N.  Y.  Supp.  959. 

io  Pope  v.  Dinsmore,  8  Abb.  Pr.  429,  and  note. 

zo  Stevens  v.   Glover,   83   N.   Y.   611. 

si  Voorhis  v.  French,  47  Super.  Ct.  (15  J.  &  S.)  364. 


:;,;.V>  WHO  MAY  APPEAL.  §  2570 

Parties. — Party  in   Default. 

the  judgment  is  one  by  default.22  But  where  defendant  ap- 
pears  at  the  trial  solely  for  the  purpose  of  demanding  a  jury 
trial  and  then  withdraws  from  further  participation  in  the 
trial  which  thereupon  proceeds,  the  judgment  is  not  one  ren- 
dered on  a  default  so  as  to  preclude  his  right  to  appeal.23  So 
a  judgment  is  not  taken  by  default  where  defendant  unsuc- 
cessfully demurs  and  where,  though  he  fails  to  answer,  he  op- 
poses the  motion  for  final  judgment.24  And  where  plaintiff 
took  judgment  without  notice  to  defendant  after  the  overrul- 
ing of  a  demurrer  to  the  complaint,  and  defendant's  failure  to 
answer  over,  defendant  was  entitled  to  appeal.25  Furthermore, 
it  would  seem  that  a  defendant  is  not  in  default  so  as  to  pre- 
clude his  right  to  appea!  merely  because  he  serves  no  answer 
where  the  judgment  merely  grants  affirmative  relief  demanded 
by  a  co-defendant  in  his  answer.20 

Successful  party.     A  party  in  whose  favor  a  judgment 

is  entered,  or  an  order  made,  cannot  be  aggrieved  by  it,  and 
he  is,  therefore,  in  no  position  to  claim  the  right  of  appeal.27 
For  instance,  a  party  who  successfully  opposes  the  granting 
of  a  motion  is  not  prejudiced  by  a  provision  in  the  order 
giving  the  defeated  party  the  right  to  renew  the  application.28 
So  a  plaintiff  who,  on  his  motion,  obtained  an  amendment  to  a 
judgment  for  defendant  so  as  to  make  the  judgment  one-  of 
dismissal  for  failure  of  proof,  cannot  appeal  from  the  judg- 
ment as  corrected,  it  superseding  the  original  judgment  and 
being  for  plaintiff's  own  benefit.29 

22  Goldsmith  v.  Goldsmith,  11  Wkly.  Dig.  551. 

23  King  v.  Ross,  28  App.  Div.   371,   51   N.   Y.   Supp.   138. 

24  Kerr  v.  Dildine,  60  Kun,   315,  15  N.  Y.   Supp.   58. 

25  People  v.  Manhattan  Real  Estate  &  Loan  Co.,  74  App.  Div.  535, 
77  N.  Y.  Supp.  837;  Mathot  v.  Triebel,  102  App.  Div.  426,  92  N.  Y. 
Supp.   512. 

26  Bliss  v.  Fosdick,  76  Hun,  508,  510,  27  N.  Y.  Supp.  1053,  followed 
in   Clark  v.  Strong,  93  N.  Y.   Supp.   514. 

27  Hooper  v.  Beecher,  109  N.  Y.  609;  Morrison  v.  New  York  El.  R. 
Co.,  57  State  Rep.  246,  26  N.  Y.  Supp.  640;  Village  of  Canandaigua 
v.  Benedict,  13  App.  Div.  600,  43  N.  Y.  Supp.  630. 

2s  Union  Surety  &  Guaranty  Co.  v.  Greater  New  York  Amusement 
Co.,   87   App.   Div.   287,   84   N.   Y.   Supp.   286. 

29  Reiehenberg  v.  Interurban  St.  R.  Co.,  90  N.  Y.  Supp.  384. 


§  2570  WHO  MAY  APPEAL.  3(553 


Parties. — Successful   Party. 


There  is  an  exception  to  this  rule,  however,  in  that  a  party 
may  appeal  from  a  judgment  in  his  own  favor  to  test  the 
validity  of  the  allowance  of  a  counterclaim,  and  this  is  so  not- 
withstanding he  has  collected  his  judgment  by  execution.30 
Furthermore,  the  successful  party  may  appeal  for  the  purpose 
of  increasing  the  amount  of  his  recovery;  and  this  rule  holds 
although  he  has  accepted  payment  of  the  amount  of  the  judg- 
ment.31 

Party  whose  interest  has  terminated.    A  party  whose 

interest  has  ceased  before  judgment,  as  where  the  plaintiff 
conveys  all  his  interest  in  the  subject-matter  of  the  litigation 
during  the  pendency  of  the  action,  cannot  appeal.32  This  rule 
does  not  apply,  however,  to  preclude  the  right  of  one  adjudged 
a  bankrupt,  pending  an  appeal  by  him  to  the  appellate  division, 
to  appeal  to  the  court  of  appeals,  where  the  judgment  of  af- 
firmance is  with  costs.33 

One  of  several  parties.  Where  judgment  has  been  ren- 
dered against  two  or  more  defendants  in  a  ease  where  a  several 
judgment  against  either  would  be  proper,  either  of  such  de- 
fendants may  appeal  from  the  judgment  if  he  is  aggrieved 
thereby,  whether  or  not  his  co-defendants  join  with  him  in  the 
appeal.  For  instance,  one  of  several  defendants,  where  the 
liability  of  the  defendants  is  several,  may  appeal  to  the  court 
of  appeals  from  an  order  granting  a  new  trial,  on  giving  a 
stipulation  for  judgment  absolute  against  him  in  case  the 
order  should  be  affirmed ;  if  the  other  defendants  do  not  de- 
sire to  appeal  or  to  give  a  stipulation,  they  can  go  back  to  a 
new  trial.34  So  a  defendant  sued  as  an  individual  together 
with  others  sued  as  a  firm  may  alone  appeal  from  so  much  of 
the  interlocutory  judgment  as  overrules  his  demurrer  to  the 
complaint  for  failure  to  state  a  cause  of  action  against  him 

so  Corlies  v.  Ferguson,  10  Wkly.  Dig.  489.  See,  also,  Howland  v.  Cof- 
fin, 47  Barb.  653. 

31  See  post  §  2580. 

32Kiefer  v.  Winkens,  39  How.  Pr.  176,  182;  Kelly  v.  Israel,  11  Paige, 
147;  Idley  v.  Bowen,  11  Wend.  227;  Reid  v.  Venderheyden,  5  Cow.  719. 

33  Sanford  v.  Sanford,  58  N.  Y.  67. 

84  Williams  v.  Western  Union  Tel.  Co.,  93  N.  Y.  162,  193. 


3654  WHO  MAY  APPEAL.  §  2570 


Parties. — One  of  Several. 


individually.35  Where  a  part  of  the  defendants,  in  an  action 
by  a  receiver,  desire  to  appeal,  they  should  bring  in  as  respond- 
ents the  other  defendants  who  have  adverse  rights,  it  not  being 
sufficient  to  bring  in  merely  the  receiver  who  has  no  substan- 
tial interest  in  the  questions  involved.36  This  rule  as  to  an 
appeal  by  part  does  not,  however,  preclude  an  appeal  by  all 
the  co-parties  who  are  aggrieved.  Thus,  where  a  joint  answer 
that  presents  a  defense  for  one  defendant  is  adjudged  frivo- 
lous as  to  all  the  defendants,  all  may  join  in  the  appeal  though 
the  defendant  in  whose  favor  a  good  defense  was  presented 
could  have  appealed  alone.37  Furthermore,  an  appeal  by  one 
party  does  not  preclude  a  co-party  from  appealing.38  However, 
an  appeal  taken  by  a  co-plaintiff,  in  which  the  others  do  not 
join,  presents  no  substantial  question  to  be  considered.39 

One  of  two  or  more  parties  cannot,  however,  appeal  from  an 
order  which  only  affects  a  co-party  who  does  not  appeal.  For 
instance,  where  two  defendants  answer  separately,  one  cannot 
appeal  from  an  order  denying  to  the  other  an  issue  to  try  the 
defense.40  So  a  defendant  sued  jointly  cannot  appeal  from  an 
order  made  on  the  trial,  or  the  judgment  entered  thereon,  dis- 
missing the  complaint  as  to  his  co-defendant.41  But  a  de- 
fendant sued  in  tort  has  an  interest  in  an  order  bringing  in  a 
new  defendant  and  directing  a  supplemental  complaint  which 
he  must  answer  or  be  in  default,  sufficient  to  permit  him  to  ap- 
peal from  such  order.42 

Executors  and  administrators.  An  executor  or  admin- 
istrator cannot  appeal  from  a  judgment  or  order  which  does 
not  injuriously  affect  him,  in  an  action  brought  by  or  against 
him.43     Executors  and  trustees  under  a  will,  who  ask  the  court 

35  Polack  v.  Runkle,  56  App.  Div.  365,  67  N.  Y.  Supp.  753. 
seHubbell  v.  Syracuse  Iron  Works,  28  Abb.  N.  C.  380. 
37  Bank  of  Cooperstown  v.  Corlies,  1  Abb.  Pr.  (N.  S.)  412,  419. 
ss  Brown  v.  Richardson,  27  Super.  Ct.  (4  Rob.)  603. 

39  Van  Vleck  v.  Ballou,  40  App.  Div.  489,  58  N.  Y.  Supp.  125. 

40  New  Orleans  Gaslight  &  Banking  Co.  v.  Dudley,  8  Paige,  452. 

«  Popham  v.  Twenty-third  St.  R.  Co.,  48  Super.  Ct.  (16  J.  &  S.)  229. 

•*2  Heffern  v.  Hunt,  8  App.  Div.  585,  40  N.  Y.  Supp.  914. 

43  Matter  of  Richmond,  63  App.  Div.  488,  71  N.  Y.  Supp.  795. 


§  2570  WHO  MAY  APPEAL.  3655 

Parties. — Executors    and    Administrators. 

for  directions  in  regard  to  their  duty,  and  for  a  judgment  as 
to  which  of  two  persons  is  entitled  to  a  certain  bequest,  which 
directions  are  given  and  acquiesced  in  by  both  of  the  al- 
leged claimants  of  the  fund,  are  not  ' '  aggrieved ; " 44  though 
the  rule  would  be  otherwise  if  the  appeal  was  by  a  beneficiary 
under  the  will.45  Executors  cannot  appeal  as  parties  ag- 
grieved where  the  parties  directly  interested  in  the  litigation 
are  joined  in  the  controversy  and  have  acquiesced  in  the  de- 
cision.46 Executors  may  appeal  from  a  judgment  in  an  action 
brought  by  them  to  compel  defendant  to  transfer  a  certificate 
of  stock  where  the  question  is  whether  the  executors  or  de- 
fendant are  entitled  thereto.47 

Trustees.     A  trustee  of  a  fund  for  the  security  for  an 

indebtedness  to  others,  who  sues  to  collect  such  indebtedness 
is  aggrieved  by  a  judgment  which  reduces  and  limits  the 
number  of  those  who  are  creditors  on  it.48  One  of  several 
trustees  of  a  fund  who  has  sued  alone,  without  objection,  may 
appeal  from  the  judgment  without  regard  to  such  other 
trustees.40  A  trustee  who  sues  alone  in  the  interest  of  the  trust 
should  permit  his  name  to  be  used  by  a  cestui  que  trust  in  tak- 
ing an  appeal  from  a  judgment  adverse  to  the  latter;  and  the 
special  term  ma}-,  by  order,  permit  such  an  appeal  to  be 
brought.50 

Corporations.  A  corporation  may  appeal  from  a  judg- 
ment declaring  it  to  be  dissolved.51  But  a  city  cannot  appeal 
from  an  order  refusing  to  confirm  the  report  of  commissioners 
appointed  in  a  special  proceeding  for  the  change  of  the  grade 
of  a  street.52 

44,  45  Bryant  v.  Thompson,  128  N.  Y.  426,  434. 

*eisham  v.  New  York  Ass'n  for  Poor,  177  N.  Y.  218. 

47  Bliss  v.  Fosdick,  76  Hun,  508,  510,  27  N.  Y.  Supp.  1053. 

48Bockes  v.  Hathorn,  78  N.  Y.  222,  which  is  decided  on  the  theory 
that  it  is  the  trustee's  duty  to  protect  and  assist  real  claimants  and  to 
see  that  no  real  claimant  is  adjudged  to  be  without  right. 

4»Bockes  v.  Hathorn,  78  N.  Y.  222,  225. 

soBockes  v.  Hathorn,  78  N.  Y.   222. 

si  Kelsey  v.  Pfandler  Process  Co.,  19  Abb.  N.  C.  427,  45  Hun,  10. 

52  Matter  of  Nepperhan  Street,  71  App.  Div.  534,  75  N.  Y.  Supp.  923. 


3056  WH0  MAY  APPEAL.  §  2570 


Parties. 


Officers  or  stockholders  of  corporation.    Directors  of  a 


corporation,  as  such,  cannot  appeal  from  an  order  directing 
the  receiver  of  the  corporation  to  bring  suit  against  such  di- 
rectors as  the  representatives  of  the  corporation,  though  they 
might  appeal  as  stockholders.53 

Receivers.     Where  a  corporation  is  dissolved  pending 

an  action  against  it,  and  the  receiver  substituted  as  a  party, 
an  appeal  may  be  taken  by  the  receiver  in  his  own  name  or  in 
that  of  the  corporation.54  A  receiver  who  has  been  substituted 
as  a  party  may  appeal  though  no  judgment  is  entered  against 
him  personally.55  And  where  the  claimants,  and  not  the  re- 
ceiver, apply  to  the  court  to  obtain  a  direction  that  he  pay  a 
large  sum  to  such  claimants  out  of  the  money  in  his  hands,  and 
such  application  is  granted,  the  receiver  is  a  party  aggrieved.56 

Public  officers.     An  officer  is  "aggrieved"  by  an  order 

commanding  him  to  do  an  official  act  which  he  deems  to  be  a 
violation  of  law,  so  as  to  be  entitled  to  appeal.57  For  instance, 
a  county  treasurer  whose  decision  refusing  to  issue  a  liquor 
tax  certificate  is  reversed,  is  a  party  aggrieved  and  hence  may 
appeal.58  So  commissioners  of  the  land  office  have  been  held 
to  be  parties  aggrieved  so  as  to  be  entitled  to  appeal  from  a 
reversal  of  their  decision  granting  title  to  certain  lands,  since 
the  reversal  interferes  with  them  in  the  discharge  of  their 
duties.59 

Creditors.  Creditors  who  become  parties  to  proceed- 
ings where  property  is  in  the  hands  of  a  receiver,  executor, 
assignee,  or  a  like  officer,  may  appeal  from  a  decision  affecting 
their  rights.60 

53  People  v.  Commercial  Bank,  6  App.  Div.  194,  39  N.  Y.  Supp.  1000. 
si  People  v.  Troy  Steel  &  Iron  Co.,  82  Hun,  303,  31  N.  Y.  Supp.  337. 
55Honegger  v.  Wettstein,  47  Super.  Ct.   (15  J.  &  S.)   125. 

56  People  v.  St.  Nicholas  Bank,  77  Hun,  159,  175,  28  N.  Y.  Supp.  407. 

57  County  clerk.  Matter  of  Cuddeback,  3  App.  Div.  103,  39  N.  Y.  Supp. 
388.  Receiver  of  taxes  of  village.  People  ex  rel.  French  v.  Town,  1  App. 
Div.  127,  37  N.  Y.  Supp.  864. 

58  People  ex  rel.  Thomas  v.  Sackett,  15  App.  Div.  290,  44  N.  Y.  Supp. 
593. 

59  People  ex  rel.  Burnham  v.  Jones,  110  N.  Y.  509. 

so  Attorney-General  v.  North  American  Life  Ins.  Co.,  77  N.  Y.  297; 
Anonymous,  18  Abb.  Pr.  87. 


§  2571  WH0  MAY  appeal.  3657 

Persons  Entitled  to  be  Substituted  as  Parties. 

Parties    to    condemnation   proceedings.     An    objecting 


landowner  cannot  appeal  from  an  order  in  a  street  opening 
proceeding  which  appoints  commissioners  of  estimate  and  as- 
sessment on  the  property  of  consenting  landowners,  since  in 
no  way  prejudiced  thereby.01 

Parties  to  election  contests.     A  member  of  a  county 

committee,  who  is  not  a  candidate  on  any  ticket,  is  not  ag- 
grieved by  an  order  requiring  certain  names  to  be  printed  on 
the  official  ballot  as  the  regular  nominees  of  a  party.62 

§  2571.     Persons  entitled  to  be  substituted  as  parties. 

"A  person  aggrieved,  who  is  not  a  party,  but  is  entitled  by 
law  to  be  substituted  in  place  of  a  party,  or  who  has  acquired, 
since  the  making  of  the  order  or  the  rendering  of  the  judg- 
ment appealed  from,  an  interest  which  would  have  entitled 
him  to  be  so  substituted  if  it  had  been  previously  acquired, 
may  *  *  *  appeal  *  *  *  .  But  the  appeal  cannot  be 
heard  until  he  has  been  substituted  in  place  of  the  party,  and 
if  he  unreasonably  neglects  to  procure  an  order  of  substitution, 
the  appeal  may  be  dismissed  upon  motion  of  the  respond- 
ent."63 

This  Code  section  contemplates  mainly,  if  not  exclusively, 
where  the  party  to  the  record  is  merely  a  nominal  one  and 
the  real  party  in  interest  is  the  one  aggrieved  because  he  is 
the  real  party;  or  where,  since  the  judgment  or  order,  there 
has  been,  by  death  or  otherwise,  a  devolution  of  the  entire  in- 
terests or  property  involved  in  the  litigation,  to  some  other 
person  who  has  thus  become  the  person  aggrieved.64  It  was 
intended  to  apply  only  to  those  who,  on  the  record,  had  no 
apparent  connection  with  the  case.65  The  person  must  not  only 
be  aggrieved  but  must  also  be  entitled  "by  law"  to  be  substi- 
tuted, i.  e.,  must,  as  a  matter  of  right,  be  entitled  to  be  sub- 
stituted.66    For  instance,  one  appointed  a  receiver  in  supple- 

ei  Matter  of  City  of  New  York,  52  App.  Div.  478,  65  N.  Y.  Supp.  77. 

62  Matter  of  Woodworth,  64  Hun,  522,  19  N.  Y.  Supp.  525. 

63  Code  Civ.  Proc.  §  1296. 

64  Ross  v.  Wigg,  100  N.  Y.  243. 

65  Hobart  v.  Hobart,  23  Hun,  484. 

«6  People  ex  rel.  Steingoetter  v.  Erie  County  Canvassers,  18   State 


5658  WH0  MAY  appeal.  §  2572 

Persons  Entitled  to  be   Substituted  as  Parties. 

mentnry  proceedings,  is  not  entitled  to  be  substituted  as  of 
right  and  hence  is  not  entitled  to  appeal.07  Before  a  person 
can  be  said  to  be  "aggrieved"  by  an  adjudication,  it  must 
have  binding  force  against  his  rights,  his  person,  or  his  prop- 
erty.GS  The  Code  provision  relates  to  the  substitution  and  not 
the  mere  addition  of  a  party.09  The  person  aggrieved  must 
have  in  fact  been  substituted  before  the  appeal  can  be  heard.70 
A  person  interested  in  real  property,  such  as  a  grantee  pend- 
ing an  action,  which  is  affected  by  a  judgment,  may  be  made 
a  party  to  the  action  after  judgment,  so  as  to  authorize  him  to 
appeal  from  the  judgment.71 

§  2572.     Persons  not  parties. 

The  rule  is  often  laid  down  that  only  parties  can  appeal.  This, 
without  modification,  is  too  broad  a  statement,  although  form- 
erly it  was  held  that  a  person  not  a  party  to  an  action,  or  his 
representative,  could  not  appeal.72  As  already  stated,  the  Code 
provides  that  a  "party"  aggrieved  may  appeal.  This  does  not, 
however,  limit  the  right  of  appeal  to  parties  to  the  "action" 
or  "special  proceeding"  but  includes  parties  to  "orders"  made 
in  such  actions  or  proceedings.73  That  is,  a  party  to  an  order 
who  is  not  a  party  to  the  action,  while  ordinarily  not  entitled 

Rep.  797.  In  this  case  a  candidate  for  a  political  office  who  had  made 
a  motion  in  mandamus  proceedings  to  compel  a  canvass  of  certain 
votes  was  held  not  entitled  to  appeal. 

67,  68  Ross  v.  Wigg,  100  N.  Y.  243. 

6o  People  ex  rel.  Steingoetter  v.  Brie  County  Canvassers,  18  State 
Rep.  797. 

to  Sheffield  Farms  Co.  v.  Burr,  13  Misc.  51,  34  N.  Y.  Supp.  74. 

7i  Koehler  Co.  v.  Brady,  82  App.  Div.  279,  288,  81  N.  Y.  Supp.  695. 

72  Martin  v.  Kanouse,  2  Abb.  Pr.  390;  Matter  of  Bristol,  16  Abb. 
Pr.  397. 

73  Hobart  v.  Hobart,  86  N.  Y.  636,  which  held  that  a  referee  to  sell 
could  appeal  from  an  order  disallowing  fees  claimed  by  him.  But  in 
Matter  of  Griscom,  28  App.  Div.  72,  50'  N.  Y.  Supp.  893,  an  order  va- 
cating a  subpoena  requiring  a  person  to  appear  before  a  local  com- 
missioner appointed  by  the  Royal  Prussian  See-Amt,  a  foreign  investi- 
gating body,  was  appealed  from  by  the  commissioner,  the  See-Amt, 
and  the  German  government.  The  appeal  was  dismissed  on  the  ground 
that  none  of  such  persons  were  parties  to  the  proceedings. 


§  2572 


WHO  MAY  APPEAL.  3659 


Persons  Not  Parties. 


to  appeal  from  the  judgment,  may  appeal  from  an  order  affect- 
ing him.  So  the  Code  provision  does  not  preclude  an  appeal 
by  persons  aggrieved,  who,  though  not  strictly  parties,  are 
so  connected  with  the  litigation  that  they  might  be  termed 
quasi  parties.  Thus,  creditors  who  are  given  notice  to  appear 
on  an  accounting  and  prove  their  debts,  and  who  do  so,  are 
entitled  to  appeal  from  orders  by  which  they  are  aggrieved.74 

Of  course,  a  person  not  a  party  and  who  is  in  no  way  con- 
nected with  the  litigation  nor  bound  by  the  judgment  or  orders 
therein  cannot  appeal.  For  instance,  a  taxpayer  cannot  inter- 
pose and  appeal  in  an  action  in  which  a  judgment  has  been  ob- 
tained against  the  city  for  damages.75  So  a  person  not  a  party 
against  whose  property  a  lis  pendens  has  been  filed  cannot  ap- 
peal from  an  order  refusing  to  vacate  such  lis  pendens.76 

Purchasers   at   judicial   sales.     Purchasers    at   judicial 

sales  may  appeal  from  an  order  setting  aside  the  sale.77 

Witnesses.     A  person  examined  as  a  witness  in  this 

state  under  a  commission  to  take  testimony  to  be  used  in  an 
action  in  a  sister  state  may  appeal  from  an  order  requiring 
him  to  answer  certain  questions  propounded  to  him.78 

Receiver.     A  receiver  who  is  not  a  party  to  the  action 

in  which  he  is  appointed  cannot  appeal  from  an  order  remov- 
ing him.79 

Referee.     A  referee  appointed  to  sell  may  appeal  from 

an  order  fixing  his  compensation.80 

Attorneys.     The   attorney  must  himself  appeal  where 

he  is  the  person  aggrieved  by  the  order  appealed  from.81     An 

■a  Anonymous,  18  Abb.  Pr.  87.  Attorney  General  v.  North  American 
Life  Ins.  Co.,  77  N.  Y.  297. 

75  Bush  v.  O'Brien,  164  N.  Y.  205,  214. 

76  Walters  v.  Kraemer,  45  State  Rep.  4,  17  N.  Y.  Supp.  659. 

7T  Delaplaine  v.  Lawrence,  10  Paige,  602;  Mortimer  v.  Nash,  17  Abb. 
Pr.   229,  note. 

78  Matter  of  Dittman,  65  App.  Div.  343,  347,  72  N.  Y.  Supp.  886.  See 
dissenting  opinion  of  Ingraham,  J.,  concurred  in  by  Laughlin,  J.  and 
Van  Brunt,  J. 

79  Conner  v.  Belden,  8  Daly,  257. 

soHobart  v.  Hobart,  23  Hun,  484;  same  point  in  86  N.  Y.  636. 

si  Pomeranz  v.  Marcus,  86  App.  Div.  321,  83  N.  Y.  Supp.  711.     Right 


3660  WH0  MAY  appeal.  §  2573 

Persons  Not  Parties. 

attorney,  though  not  a  party  to  the  action,  may  appeal  from 
an  order  refusing  his  fees  on  a  discontinuance  of  a  divorce 
suit.s- 

Sureties.     Though  not  strictly  parties,  sureties  on  an 

injunction  bond  may  appeal  from  an  order  confirming  the  re- 
port of  a  referee  to  assess  the  damages  sustained  by  the  issu- 
ing of  the  injunction.83 

Persons   examined   in  supplementary   proceedings.    A 

third  person  compelled  to  pay  over  to  the  judgment  creditor 
in  supplementary  proceedings  a  fund  held  for  the  judgment 
debtor  may  appeal  from  such  order.84  But  one  examined  as 
a  third  person  in  supplementary  proceedings  is  not  aggrieved 
by  an  order  appointing  a  receiver.85 

§  2573.     Person  who  has  not  appealed  to  intermediate  court. 

One  who  has  not  appealed  to  the  appellate  division  cannot 
appeal  from  the  decision  of  such  court  to  the  court  of  ap- 
peals.86 

of  attorney  to  appeal  from  decison  in  favor  of  his  clients,  see  Matter 
of  Maxwell,  74  Hun,  307,  26  N.  Y.  Supp.  1114. 

82  Louden  v.  Louden,  65  How.  Pr.  411. 

S3  Hotchkiss  v.  Piatt,  7  Hun,  56. 

si  Locke  v.  Mabbett,  3  Abb.  Dec.  68. 

ss  Clark  v.  Savage,  5  Wkly.  Dig.  193. 

se  piatt  v.  Piatt,  105  N.  Y.  488;  Beebe  v.  Richmond  Light,  Heat  & 
Power  Co.,  6  App.  Div.  187,  40  N.  Y.  Supp.  1013. 


CHAPTER  IV. 

WAIVER  OF  RIGHT  TO  APPEAL. 

General  considerations,  §  2574. 

Agreements,  §  2575. 

Consent  to  judgment  or  order,  §  2576. 

Acceptance  of  part  of  judgment  or  order  favorable  to  appellant, 

§  2577. 

Acceptance  of  conditions  imposed  on  adverse  party. 

Appeal  from  part  of  a  judgment  or  order,  §  2578. 

Payment,  §  2579. 

Accepting  payment,  §  2580. 

Payment  or  acceptance  of  award  in  condemnation  proceedings, 

§  2581. 
Acceptance  of  costs,  §  25S2. 
Proceeding  with  trial,  §  2583. 

Submission  to  new  trial. 

\nswering  after  demurrer  is  overruled  or  motion  is  denied, 

§  2584. 
Amendment  of  pleadings,  §  2585. 
Pleading  judgment  as  defense,  §  2586. 
Prosecuting  another  action  on  counterclaim,  §  25S7. 
Renewal  of  motion,  §  2588. 
Appeal  from  judgment  as  waiver  of  right  to  appeal  from  order, 

§  2589. 
By  entering  judgment  on  remittitur,  §  2590. 

§  2574.     General  considerations. 

A  person  entitled  to  appeal  may  waive  his  right  to  do  so 
either  by  (a)  an  express  agreement  or  by  (b)  the  doing  of  an 
act  or  acts  inconsistent  with  an  appeal.  As  an  instance  of  the 
latter,  it  is  held  that  the  right  to  appeal  from  an  order  consol- 
idating two  actions  is  waived  by  the  receipt,  without  objection, 
of  an  amended  complaint  in  the  consolidated  action,  the  service 
of  an  offer  of  judgment  in  such  action,  and  the  stipulating  to  al- 
low a  second  amended  complaint.1     The  inconsistent  act  often 

i  Rockefeller  v.  St.  Regis  Paper  Co.,  85  App.  Div.  267,  83  N.  Y.  Supp. 
138. 


;;,;,;•_>  WAIVER  OF  RIGHT  TO  APPEAL.  §  2675 


General  Considerations. 


is  the  acceptance  of  a  benefit  under  the  judgment  or  order 
sought  to  be  reviewed  on  appeal.2  But  to  make  the  acceptance 
of  a  benefit  under  an  order  operate  as  a  waiver  of  the  right 
of  appeal  therefrom,  there  must  be  an  inconsistency  in  retaining 
such  benefit  and  at  the  same  time  appealing  from  the  order.3 

§  2575.     Agreements. 

The  right  to  appeal  may  be  waived  by  express  agreement, 
evidenced  by  a  writing,4  and  based  on  some  consideration,5 
where  the  intent  to  waive  the  right  of  appeal  is  clear.6  An 
appellate  court  has  the  right  to  enforce  such  an  agreement 
between  the  parties  by  refusing  to  entertain  an  appeal.7  The 
right  to  appeal  may  be  precluded  by  an  agreement  which, 
though  not  an  express  waiver  of  the  right  of  appeal,  shows  that 
it  was  the  intention  of  the  parties  that  the  judgment  in  the 
trial  court  should  end  the  contest.8  But  the  mere  expressing 
a  determination  not  to  appeal  does  not  preclude  the  right  to 
appeal.9 

2  Knapp  v.  Brown,  45  N.  Y.  207.  Kraeger  v.  Warnock,  81  App.  Div. 
150,  80  N.  Y.  Supp.  687. 

s  Ziadi  v.  Interurban  St.  R.  Co.,  97  App.  Div.  137,  89  N.  Y.  Supp.  606. 

*  Townsend  v.  Masterson,  S.  &  S.  Stone  Dressing  Co.,  15  N.  Y.  587, 
where  it  was  stipulated  that  decision  of  general  term  of  supreme  court 
should  be  final.  That  verbal  agrement  is  sufficient,  see  People  v. 
Stephens,  52  N.  Y.  306. 

5  Ogdensburgh  &  Lake  Champlain  R.  Co.  v.  Vermont  &  C.  R.  Co., 
63  N.  Y.  176. 

e  Stedeker  v.  Bernard,  93  N.  Y.  589,  which  held  that  the  provision 
in  an  undertaking  given  on  appeal,  that  if  the  order  was  affirmed  the 
appellant  would  pay  the  judgment,  related  to  final  judgment  in  the 
action,  and  did  not  preclude  the  right  to  appeal  to  the  court  of  ap- 
peals. 

"  Townsend  v.  Masterson,  S.  &  S.  Stone  Dressing  Co.,  15  N.  Y.  587, 
in  which  case  the  parties  stipulated  not  to  appeal  to  the  court  of  ap- 
peals. 

a  New  v.  Fisher,  16  Wkly.  Dig.  363. 

a  Kilmer  v.  Bradley,  45  Super  Ct.  (13  J.  &  S.)  585,  which  refused  to 
enjoin  the  appeal. 


§  2576  WAIVER  OF  RIGHT  TO  APPEAL.  ;;(;<;;j 


Consent   to  Judgment  or  Order. 


§  2576.     Consent  to  judgment  or  order. 

A  judgment 10  or  order  X1  granted  on  consent  is  not  appeal- 
able. For  instance,  a  party  cannot  appeal  from  a  judgment 
amended  and  corrected  and  entered  on  his  own  motion,  which 
enables  him  to  begin  another  action  for  the  same  cause.12  So  a 
pro  forma  order,  entered  by  consent,  without  a  consideration 
of  the  merits  of  the  motion,  to  permit  an  appeal  to  the  appel- 
late division,  is  not  appealable.13  But  the  fact  that  a  party,  in 
order  to  appeal,  is  required  to  move  to  compel  the  successful 
party  to  enter  judgment,  does  not  make  the  judgment  one  by 
consent  so  as  to  preclude  an  appeal.14  So  the  fact  that  a  party 
aggrieved  by  an  order  procures  to  be  inserted  therein,  by 
amendment  and  resettlement,  matters  which  he  deems  essential 
to  the  protection  of  his  rights  and  to  a  clear  presentation  to 
the  appellate  tribunal  of  the  legal  question  involved,  does  not 
waive  his  right  to  appeal  therefrom.15  And  counsel  who  oppose 
a  motion  to  dismiss  an  action  for  want  of  prosecution  in  not 
complying  with  an  order  to  amend  are  not  to  be  deemed  to  con- 
sent to  such  order  of  dismissal  so  as  to  preclude  an  appeal, 
merely  because  they  state  that  sooner  than  comply  with  the 
order  they  will  allow  the  complaint  to  be  dismissed  and  pre- 
sent the  case  on  appeal.16 

10  Bacon  v.  Abbey  Press,  43  Misc.  345,  350,  87  N.  Y.  Supp.  165;  Al- 
leva  v.  Hagerty,  32  Misc.  711  (mem.)  65  N.  Y.  Supp.  690;  Peterson 
v.  Swan,  119  N.  Y.  662;  Fincb  v.  Carpenter,  29  Hun.  268.  Wbat  con- 
stitutes consent  to  judgment,  see  De  Camp  v.  Mclntire,  115  N.  Y. 
258;  Kam  v.  Benjamin,  10  App.  Div.  419,  42  N.  Y.  Supp.  99. 

ii  Dawson  v.  Parsons,  74  Hun,  221,  26  N.  Y.  Supp.  327.  If  order  fails 
to  follow  the  consent,  a  motion  is  proper  to  vacate  it  in  toto  or  so 
much  of  it  as  departs  from  the  consent.  Bolles  v.  Cantor,  6  App.  Div. 
365,  39  N.  Y.  Supp.  652. 

12  Reichenberg  v.  Interurban  St.  R.  Co.,  45  Misc.  387,  90  N.  Y.  Supp. 
384. 

13  Brown  v.  Brown,  64  App.  Div.  544,  72  N.  Y.  Supp.  309. 
ii  Skinner  v.  Quinn,  43  N.  Y.  99. 

is  Matter  of  Gall,  47  App.  Div.  490,  62  N.  Y.  Supp.  420. 
iiLahens  v.  Fielden,  15  Abb.  Pr.  177. 


3664  WAIVER  OF  RIGHT  TO  APPEAL.  §  2577 


Acceptance   of  Benefits. 


§  2577.     Acceptance  of  part  of  judgment  or  order  favorable 
to  appellant. 

The  acceptance  of  the  benefits  of  the  part  of  the  judgment 
or  order  which  is  favorable  to  a  party  precludes  an  appeal  by 
him  from  that  part  which  is  unfavorable.17  For  instance,  ex- 
cept as  stated  in  the  next  sentence,  one  granted  a  favor  on  cer- 
tain terms  cannot  appeal  from  the  order  and  object  to  the 
the  terms  imposed,  after  he  has  availed  himself  of  the  privilege 
conferred  by  the  order.18  But  the  acceptance  of  the  relief 
granted  does  not  preclude  an  appeal  from  so  much  of  the  order 
as  imposes  terms  as  a  condition  to  granting  relief,  where  the 
party  is  entitled,  as  a  matter  of  right,  to  the  order  without 
terms.19  Thus,  a  party  on  whom  illegal  terms  are  imposed  as 
the  condition  of  allowing  an  adjournment  may  appeal  from 
such  order  though  he  has  paid  the  illegal  amount  under  pro- 
test to  prevent  a  dismissal  of  the  complaint.20  The  rule  seems 
to  be  that  where  the  moving  party  seeks  and  obtains  relief 
which  he  is  entitled  to  as  a  matter  of  right  and  not  as  of 
favor,  his  acceptance  of  so  much  of  the  order  as  grants  his  mo- 
tion does  not  prevent  him  from  appealing  from  the  order  in  so 
far  as  it  improperly  denies  other  relief  sought  by  the  motion.21 

Enforcing  provisions  of  the  judgment  which  are  dependent 
on  those  appealed  from  waives  the  right  to  appeal.22 

A  party  who  resists  an  appeal  from  the  part  of  the  judg- 

i7  Harris  v.  Taylor,  20  Weekly  Dig.  359.  But  see  Hyatt  v.  Ingalls, 
49  Super.  Ct.  (17  J.  &  S.)  375. 

^Negley  v.  Short,  18  Civ.  Proc.  R.  45,  27  State  Rep.  274;  Wood  v. 
Richardson,  91  Him,  332,  36  N.  Y.  Supp.  1001;  Matter  of  New  York, 
Lackawanna  &  W.  R.  Co.,  44  Hun,  275.  Kraeger  v.  Warnock,  81  App. 
Div.  150,  80  N.  Y.  Supp.  687  Order  granting  leave  to  discontinue. 
Dambmann  v.  Schulting,  6  Hun,  29.  Order  granting  postponement. 
Austin  v.  Wauful,  36  State  Rep.  779,  13  N.  Y.  Supp.  184.  Release  from 
arrest.     Claflin  v.  Frenkel,  29  Hun,  288. 

is  Kennedy  v.  Wood,  54  Hun,  14,  7  N.  Y.  Supp.  90.  See,  also,  O'Brien 
v.  Long,  49  Hun,  80,  1  N.  Y.  Supp.  695;  Chapin  v.  Foster,  101  N.  Y.  1. 

20  Kennedy  v.  Wood,  54  Hun,  14,  7  N.  Y.  Supp.  90. 

2iRodbourn  v.  Utica,  Ithaca  &  E.  R.  Co.,  28  Hun,  369. 

"Bennett  v.  Van  Syckel,  18  N.  Y.  481;  Benkard  v.  Babcock,  25 
Super.  Ct.   (2  Rob.)   175. 


§  2578  WAIVER  OF  RIGHT  TO  APPEAL.  3(565 


Acceptance  of  Benefits. 


ment  which  is  in  his  favor  and  secures  an  affirmance,  cannot 
thereafter  appeal  from  the  whole  judgment.23 

Acceptance  of  conditions  imposed  on  adverse  party. 

Where  a  motion  is  granted,  or  a  judgment  reversed,  unless  the 
opposing  party  performs  certain  acts,  the  compliance  there- 
with by  performing  such  acts  precludes  such  party  from  ap- 
pealing from  the  order.24  For  instance,  where  a  new  trial  is 
granted  unless  plaintiff  stipulates  to  reduce  the  amount  of  his 
recovery,  the  giving  of  such  a  stipulation  precludes  the  right  to 
appeal  from  the  order.25  But  the  right  to  prosecute  an  appeal 
from  an  order  granting  a  new  trial  unless  plaintiff,  within  a 
specified  time,  stipulates  to  reduce  the  amount  of  the  judgment 
to  a  named  sum,  is  not,  it  seems,  waived  by  the  act  of  plaintiff 
in  obtaining  a  stay  of  proceedings  under  the  order  and  an  ex- 
tension of  the  time  to  stipulate  to  twenty  days  after  the  deter- 
mination of  the  appeal  from  the  order.26 

§  2578.    Appeal  from  part  of  a  judgment  or  order. 

An  appeal  from  only  a  part  of  an  order  is  the  acceptance  of 
the  other  part  and  a  waiver  of  the  right  to  appeal  therefrom. 
But  this  rule  applies  only  where  the  provisions  of  the  judg- 
ment or  order  are  such  that  the  party,  by  not  appealing  from 
a  part,  enforces  or  accepts  a  substantial  benefit  by  reason  of 

that  portion  not  appealed  from.27 

. 

23  Genet  v.  Davenport,  60  N.  Y.  196.  See,  also,  Id.,  59  N.  Y.  648;  Id., 
56  N.  Y.  676. 

2i  Canary  v.  Knowles,  41  Hun,  542.  National  Sav.  Bank  v.  Slade,  17 
App.  Div.  115,  44  N.  Y.  Supp.  934.  See,  also,  Matter  of  O'Brien,  145  N. 
Y.  379. 

25  Clarke  v.  Meigs,  23  Super.  Ct.  (10  Bosw.)  337;  Sperry  v.  Hellman, 
36  State  Rep.  52,  13  N.  Y.  Supp.  271. 

26  Cullen  v.  William  E.  Uptegrove  &  Bro.,  101  App.  Div.  147,  91  N  Y. 
Supp.  511. 

27  Wallace  v.  Castle,  68  N.  Y.  370,  which  held  that  the  rule  does  not 
apply  where  an  order  vacates  an  attachment  on  condition  that  de- 
fendant does  not  sue  on  the  undertakings  therein,  and  plaintiff  appeals 
from  so  much  of  the  order  as  vacates  the  attachment. 

N.  Y.  Prac— 230. 


3666  WAIVER  OF  RIGHT  TO  APPEAL.  §  2580 


Payment  or  Accepting  Payment. 


§  2579.     Payment. 

Payment  of  the  judgment,28  where  such  payment  is  not  by 
way  of  compromise,29  or  compliance  with  an  "order"  to  pay,30 
does  not  preclude  the  right  to  appeal.  So  the  payment  of  costs31 
especially  where  coerced  by  execution,32  does  not  waive  the 
right  to  appeal. 

§  2580.    Accepting  payment. 

If  the  party  in  whose  favor  judgment  is  rendered  subse- 
quently accepts  payment  thereof,  he  does  not  thereby  waive 
the  right  to  appeal  from  it  for  the  purpose  of  modifying  it  so 
as  to  increase  the  amount  of  recovery.33  In  short,  the  accept- 
ance does  not  waive  the  right  to  appeal  where  the  party  ac- 
cepting would  be  entitled  to  retain  the  amount  received  in  any 
conceivable  disposition  of  the  case.34  For  instance,  the  receipt 
by  a  party  to  an  action  for  partition  of  his  share  of  the  pro- 
ceeds of  the  sale  does  not  necessarily  preclude  him  from  ap- 
pealing from  the  judgment,35  except  where  he  might,  on  a  new 
trial,  in  case  his  appeal  was  successful,  recover  less  than  the 
amount  so  received.36 

On  the  other  hand  the  acceptance  of  payment  in  full  or  in 
part 37  waives  the  right  to  appeal  to  set  aside  the  judgment  in 

ssMacEvitt  v.  Maass,  64  App.  Div.  382,  72  N.  Y.  Supp.  158;  Wells 
v.  Danforth,  1  Code  R.  (N.  S.)  512;  Hayes  v.  Nourse,  107  N.  Y.  577; 
Empire  Hardware  Co.  v.  Young,  27  Misc.  226,  57  N.  Y.  Supp.  753. 

29  Id. 

so  Uhlman  v.  Uhlman,  51  Super.  Ct.  (19  J.  &  S.)   361. 

si  Champion  v.  Plymouth  Cong.  Soc,  42  Barb.  441. 

32  Burch  v.  Newbury,  4  How.  Pr.  145. 

33  Seymour  v.  Spring  Forest  Cemetery  Ass'n,  4  App.  Div.  359,  38  N. 
Y.  Supp.  726.  Matter  of  Raber,  4  State  Rep.  845;  Monnet  v.  Merz, 
43  State  Rep.  59,  17  N.  Y.  Supp.  380;  New  Rochelle  Gas  &  Fuel  Co.  v. 
Van  Benschoten,  47  App.  Div.  477,  62  N.  Y.  Supp.  398.  To  same- 
effect,  Higbie  v.  Westlake,  14  N.  Y.  (4  Kern.)  281.  Benkard  v.  Bab- 
cock,  25  Super.  Ct.  (2  Rob.)  175. 

34  Alexander  v.  Alexander,  104  N.  Y.  643. 

35  Mellen  v.  Mellen,  137  N.  Y.  606. 

36  Alexander  v.  Alexander,  104  N.  Y.  643,  18  Abb.  N.  C.  344. 

37  Accepting  part  payment  is  a  waiver.  Hess  v.  Smith,  16  Misc. 
55,  37  N.  Y.  Supp.  635. 


§  2582  WAIVER  OF  RIGHT  TO  APPEAL.  3667 


Accepting  Payment. 


toto.38  Thus  the  collecting  by  execution  the  amount  of  a  judg- 
ment is  a  waiver  of  an  appeal  prosecuted  to  procure  a  reversal 
for  alleged  error.39  Where  defendant  pays  into  court  under 
a  plea  of  tender,  and  judgment  is  rendered  for  the  exact 
amount  tendered,  plaintiff  cannot,  after  drawing  out  the  de- 
posit in  court,  appeal,  since  by  so  doing  he  would  be  permitted 
to  accept  part  of  the  benefit  of  the  judgment  and  to  appeal 
from  the  balance.40 

To  constitute  a  waiver,  the  acceptance  of  the  money  must  be 
by  the  party  or  by  some  one  authorized  to  act  in  his  behalf  in 
regard  thereto.41  Furthermore,  the  acceptance  does  not  pre- 
clude an  appeal  from  a  part  of  the  judgment  which  is  separate 
and  independent.42 

§  2581.     Payment  or  acceptance  of  award  in  condemnation 
proceedings. 

Neither  the  payment  nor  the  acceptance  of  an  award  in  con- 
demnation proceedings  precludes  either  party  from  appealing 
from  the  award.43 

§  2582.     Acceptance  of  costs. 

If  the  imposition  of  costs  is  absolute  and  not  conditional,  the 
receiving  the  costs  does  not  waive  the  right  to  appeal.44  But 
where  a  motion  is  granted  but  costs  are  imposed  on  the  moving 

38  Monnet  v.  Merz,  43  State  Rep.  59,  17  N.  Y.  Supp.  380. 

39  Knapp  v.  Brown,  45  N.  Y.  207. 

40  Graham  v.  Sapery,  19  Misc.  690,  44  N.  Y.  Supp.  1109. 

4i  Matter  of  New  York  &  H.  R.  Co.,  98  N.  Y.  12.  So  acceptance  of 
money  paid  in  pursuance  of  an  order,  by  receivers,  while  concluding 
the  receivers  personally,  does  not  prevent  an  appeal  by  a  person  made 
a  party  by  order  after  judgment  of  dissolution  of  the  insolvent  cor- 
poration. People  v.  Anglo-American  Sav.  &  Loan  Ass'n,  60  App.  Div. 
389,  69  N.  Y.  Supp.  1054. 

42  Matter  of  Bogert's  Estate,  25  Misc.  466,  55  N.  Y.  Supp.  751. 

43  Matter  of  New  York  &  H.  R.  Co.,  98  N.  Y.  12. 

44  Matter  of  Water  Com'rs  of  Amsterdam,  36  Hun,  534;  Farmers' 
Loan  &  Trust  Co.  v.  Bankers'  &  Merchants'  Tel.  Co.,  109  N.  Y.  342.  This 
applies  equally  well  to  costs  awarded  by  a  judgment.  Seymour  v. 
Spring  Forest  Cemetery  Ass'n,  4  App.  Div.  359,  38  N.  Y.  Supp.  726. 


3668  WAIVER  OF  RIGHT  TO  APPEAL.  §  2583 


Proceeding  With  Trial. 


party  as  a  condition  of  granting  the  relief,  the  adverse  party 
waives  the  right  to  appeal  from  the  order  by  accepting  such 
costs.  •  The  same  rule  applies  where  the  defeated  party  accepts 
costs  awarded  by  a  judgment.40  This  rule  is  not  affected  by  the 
fact  that  subsequently  an  offer  to  return  such  costs  is  made  and 
refused.17 

§  2583.     Proceeding  with  trial. 

If  an  order  or  interlocutory  judgment  is  entered,  the  party 
against  whom  it  is  rendered  may  proceed  thereunder,  where 
he  neither  accepts  a  benefit  therefrom  nor  enforces  it,  without 
waiving  his  right  to  appeal  therefrom.48  For  instance,  the  pro- 
ceeding to  try  a  cause  under  an  order  of  reference  does  not 
waive  the  right  to  appeal  from  such  order,49  especially  where 
the  party  raises  before  the  referee  the  objection  that  the  order 
of  reference  was  unauthorized  and  states  that  an  appeal  will 
be  taken.50  A  fortiori,  the  proceeding  with  a  reference  does 
not  preclude  an  appeal  from  the  order  when  it  is  subsequently 
modified.51  So  proceeding  under  an  interlocutory  judgment, 
not  by  enforcing  it,  but  by  establishing  claims  on  the  reference 
ordered  by  it,  is  not  a  waiver  of  the  right  to  appeal  from  it.52 
So  the  fact  that  a  party  proceeds  with  the  trial,  after  the  denial 
of  a  motion  to  remove  the  cause  to  another  ceurt  does  not  waive 

«Radway  v.  Graham,  4  Abb.  Pr.  468;  Hood  v.  Hood,  6  State  Rep. 
6;  Logeling  v.  New  York  El.  R.  Co.,  5  App.  Div.  198,  38  N.  Y.  Supp. 
1112;  Wood  v.  Richardson,  91  Hun,  332,  36  N.  Y.  Supp.  1001. 

■*6Carll  v.  Oakley,  97  N.  Y.  633. 

47Platz  v.  City  of  Cohoes,  8  Abb.  N.  C.  392. 

is  Matter  of  New  York  Cent.  &  H.  R.  R.  Co.,  60  N.  Y.  112;  Dey  v. 
Walton,  2  Hill,  403.  See,  as  contra,  Mills  v.  Stewart,  88  Hun,  503,  34 
N.  Y.  Supp.  786. 

*9  Brown  v.  City  of  New  York,  9  Hun,  587;  Ubsdell  v.  Root,  3  Abb. 
Pr.  142.  Contra,  Bloom  v.  National  United  Ben.  Sav.  &  Loan  Co.,  81 
Hun,  120,  30  N.  Y.  Supp.  700. 

so  Read  v.  Lozin,  31  Hun,  286. 

si  Stokes  v.  Stokes,  87  Hun,  152,  33  N.  Y.  Supp.  1024. 

52  Otherwise  if  the  party  should  proceed  and  enforce  payment  of 
such  claims.     Barker  v.  White,  58  N.  Y.  204 


§  2<;S4 


WAIVER  OP  RIGHT  TO  APPEAL.  3669 


Proceeding  With   Trial. 


his  right  to  appeal  from  the  order.53  Likewise,  the  action  of 
defendant's  counsel  in  appearing  and  taking  part  in  the  exam- 
ination of  a  witness  does  not  constitute  a  waiver  of  defendant's 
right  to  appeal  from  an  order  previously  made  denying  a  mo- 
tion to  vacate  the  order  for  the  examination.54  And  an  appeal 
from  an  order  appointing  commissioners  is  not  waived  by  ap- 
pearing before  the  commissioners  and  examining  witnesses.55 

Submission  to  new  trial.     Proceeding  with  a  new  trial, 

it  is  held,  precludes  the  right  to  appeal  from  the  order  granting 
the  new  trial.50 

§  2584.    Answering  after  demurrer  is  overruled  and  motion 
is  denied. 

Pleading  over  after  a  demurrer  is  overruled  is  a  waiver  of 
the  right  to  appeal  from  the  interlocutory  judgment  entered 
on  overruling  the  demurrer.57  So  the  service  of  an  answer  has 
been  held  a  waiver  of  the  right  to  appeal  from  an  order  deny- 
ing a  motion  to  compel  a  separate  statement  of  the  several 
causes  of  action  set  forth  in  the  complaint.58  But  the  service  of 
an  answer  after  the  denial  of  a  motion  to  make  the  complaint 
more  definite  and  certain  is  not  a  waiver  of  the  right  to  ap- 
peal from  the  order  denying  such  motion,59  nor  is  the  serv- 
ice of  an  answer  a  waiver  of  the  right  to  appeal  from  an  or- 
der denying  a  motion  to  set  aside  the  summons  because  of  an 
improper  service  thereof,  where  the  answer  sets  up  the  same 
fact  as  a  plea  to  the  jurisdiction.00 

§  2585.    Amendment  of  pleadings. 

Amending  after  a  demurrer  to  a  pleading  is  sustained  is  a 
waiver  of  the  right  to  appeal  from  the  interlocutory  judg- 
es Leverson  v.  Zimmerman,  31  Misc.  642,  64  N.  Y.  Supp.  723. 

5*Osborn  v.  Barber,  93  N.  Y.  Supp.  833. 

ss  Matter  of  New  York,  L.  &  W.  R.  Co.,  126  N.  Y.  632. 

so  Grunberg  v.  Blumenthal,  66  How.  Pr.  62. 

st  Brady  v.  Donnelly,  1  N.  Y.   (1  Comst.)   126. 

ss  Sixth  Ave.  R.  Co.  v.  Manhattan  R.  Co.,  54  Super.  Ct.  (22  J.  &  S) 
323. 

so  Peart  v.  Peart,  48  Hun,  79. 

oo  McNamara  v.  Canada  S.  S.  Co.,  16  Wkly.  Dig.  86. 


;;(;;  WAIVER  OF  RIGHT  TO  APPEAL.  §  2688 


Amendment  of  Pleadings. 


ment.61  So  a  party  who  obtains  leave  to  amend  his  pleading 
cannot  appeal  from  a  prior  order  striking  out  a  portion  of  his 
pleading.62  So  the  service  of  an  amended  complaint,  in  pur- 
suance of  an  order  dismissing  the  complaint  as  to  one  defend- 
ant, waives  the  right  to  appeal  from  such  order.63  But  the 
service  of  an  amended  complaint,  dropping  one  of  two  causes 
of  action  on  which  an  attachment  has  been  issued,  which  at- 
tachment had  been  vacated,  from  the  vacation  of  which  an  ap- 
peal had  been  taken,  does  not  waive  the  right  to  prosecute  such 
appeal.64  And  the  obtaining  leave  to  amend,  on  a  motion  to 
dismiss  the  complaint,  does  not  waive  the  right  to  appeal  from 
the  order  dismissing  the  complaint  unless  plaintiff  should 
amend,  where  plaintiff  does  not  accept  the  leave  to  amend.65 

§  2586.    Pleading  judgment  as  defense. 

Setting  up  the  judgment  as  a  bar  to  a  second  action  for  the 
same  cause  is  not  a  waiver  of  the  right  to  appeal  therefrom,66 
nor  is  the  setting  it  up  as  a  partial  defense  in  an  action  in  which 
respondent  was  not  a  party.07 

§  2587.     Prosecuting  another  action  on  counterclaim. 

Bringing  another  action  on  a  cause  of  action  set  up  in  a 
counterclaim  which  has  been  stricken  out  does  not  waive  the 
right  to  appeal  from  the  order  striking  it  out.GS 

§  2588.    Renewal  of  motion. 

The  renewing  a  motion  precludes  the  right  to  appeal  from 
the  order,69  though  no  leave  to  renew  was  granted.70 

6i  McElwain  v.  Willis,  9  Wend.  548. 

02  Sun  Printing  &  Pub.  Ass'n  v.  Abbey  Effervescent  Salt  Co.,  62 
App.  Div.  54,  70  N.  Y.  Supp.  871. 

es  City  of  New  York  v.  Kent,  56  Super.  Ct.  (24  J.  &  S.)  133,  4  N.  Y. 
Supp.  802. 

04  Norfolk  &  New  Brunswick  Hosiery  Co.  v.  Arnold,  131  N.  Y.  553. 

"»  Schulsinger  v.  Blau,  84  App.  Div.  390,  82  N.  Y.  Supp.  686. 

66  Ostrander  v.  Campbell,  20  State  Rep.  806,  3  N.  Y.  Supp.  597.  See, 
also,  Prescott  v.  Tousey,  49  Super.  Ct.  (17  J.  &  S.)   53. 

07  Cornell  v.  Donovan,  12  State  Rep.  117;   affirmed  in  109  N.  Y.  664. 

es  O'Brien  v.  Smith,  37  State  Rep.  43,  13  N.  Y.  Supp.  410. 


§  2590  WAIVER  OF  RIGHT  TO  APPEAL.  3671 

Inconsistent  Acts. 

§  2589.    Appeal  from  judgment  as  waiver  of  right  to  appeal 
from  order. 

The  right  to  appeal  from  an  order  denying  a  motion  to  set 
aside  a  judgment  for  irregularity  is  not  waived  by  appealing 
from  the  judgment  itself,  though  it  would  seem  that  an  appeal 
from  the  judgment  before  moving  to  set  it  aside  would  be  a 
waiver  of  the  motion.71 

§  2590.    By  entering  judgment  on  remittitur. 

By  entering  judgment  on  a  remittitur  of  the  court  of  appeals, 
the  successful  party  waives  his  right  to  appeal  from  any  part 
of  the  order  directing  the  entry  of  such  judgment.72 

69  Noble  v.  Prescott,  4  E.  D.  Smith,  139;  Harrison  v.  Neher,  9  Hun, 
127;  Harris  v.  Brown,  29  Hun,  477. 
to  Harris  v.  Brown,  93  N.  Y.  390. 

7i  Kerr  v.  Dildine,  14  Civ.  Proc.  R.  (Browne)  176,  15  State  Rep.  616. 
72  Prentiss  v.  Bowden,  14  Misc.  185,  35  N.  Y.  Supp.  653. 


CHAPTER  V. 

PARTIES  TO  APPEAL. 

Designation,  §  2591. 
Appellants,  §  2592. 
Respondents,  §  2593. 
Substitution,  §  2594. 

Personal  representatives  as  respondents. 

To  what  court  application  to  be  made. 

Procedure  to  obtain  substitution. 

Procedure   where   no   order   of   substitution   is   obtained. 

§  2591.     Designation. 

The  party  or  person  appealing  is  designated  as  the  appellant 
and  the  adverse  party  as  the  respondent.1  If  one  other  than  a 
party  appeals  his  name  is  added  to  the  title  of  the  case  as  ap- 
pellant, but  otherwise  the  title  remains  the  same.2 

§  2592.     Appellants. 

The  question  as  to  who  may  appeal  has  been  considered,3  as 
well  as  the  joinder  of  appellants.* 

§  2593.     Respondents. 

The  determination  of  the  question  as  to  who  must  be  served 
with  the  notice  of  appeal 5  determines  the  question  as  to  who 

i  Code  Civ.  Proc.  §  1295. 

2  For  instance,  the  title  may  be  as  follows:  "John  Jones,  plaintiff 
v.  Richard  Smith,  respondent.  William  Brown,  appellant."  Or  (86  N. 
Y.  636.)  "Hobart  *  *  *  ,  respondents,  v.  *  *  *  Hobart 
*     *     *     respondents.    Delos  A.  Bellis  referee,  etc.,  appellant." 

3  See  ante,  §§  2570-2573. 

4  See  ante,  §  2570. 
e  See  post,  §  2633. 


§  2594  PARTIES  TO  APPEAL.  3673 

Respondents. — Substitution. 

must  be  made  respondents.  Generally  speaking,  all  persons 
should  be  made  respondents  who  are  interested  in  sustaining 
the  judgment  or  order  appealed  from,6  and  this  includes  per- 
sons not  parties  of  record.7  Attorneys  for  the  contestants  of 
a  will,  to  whom  certain  sums  are  directed  to  be  paid  as  allow- 
ances in  lieu  of  costs,  are  proper  parties  to  an  appeal  from  such 
order. s 

The  right  of  a  'party  to  apply  for  an  order  directing  him  to 
be  brought  in  as  a  respondent  in  a  pending  appeal,  taken  from 
a  surrogate's  decree,  is  not  affected  by  the  fact  that  the  time 
within  which  he  himself  could  have  appealed  therefrom  has 
expired.9 

§  2594.    Substitution. 

A  substitution  of  parties  is  necessary  before  the  appeal  can 
be  heard,  (1)  where  the  appeal  is  taken  by  one  not  a  party  but 
who  is  entitled  by  law  to  be  substituted  in  place  of  a  party, 
or  who  has  acquired  an  interest  since  the  making  of  the  order 
or  the  rendition  of  the  judgment  appealed  from  which  would 
have  entitled  him  to  be  substituted  if  the  interest  had  been 
acquired  previous  thereto;  or  (2)  where  the  "adverse"  party 
has  died  before  an  appeal  is  taken;  or  (3)  where  either  party 
to  an  appeal  dies  before  the  appeal  is  heard.  The  first  case  is 
provided  for  by  section  1296  of  the  Code,  the  second  by  section 
1297,  and  the  third  by  section  1298.  Section  1299  applies  to 
all  three  of  said  sections  and  provides  (1)  that  where  the  ap- 
peal is  "from  one  court  to  another,"  an  application  for  an  order 
of  substitution  must  be  made  "to  the  appellate  court,"  and 
(2)  that  where  personal  service  of  notice  of  application  for  an 
order  has  been  made,  within  the  state,  on  the  proper  representa- 
tive of  the  decedent,  an  order  of  substitution  may  be  made, 
on  the  application  of  the  surviving  party. 

6  Cox  v.  Schermerhorn,  12  Hun,  411. 

7  Barnes  v.  Stoughton,  6  Hun,  254. 

8  Peck  v.  Peck,  23  Hun,  312,  316. 

o  Cox  v.  Schermerhorn,  12  Hun,  411. 


3674  PARTIES  TO  APPEAL.  §2594 


Substitution. 


If  a  sole  plaintiff  dies  pending  an  appeal  to  the  court  of  ap- 
peals, the  appeal  cannot  be  "heard"  until  substitution  of  his 
personal  representative.10 

The  death  of  a  party  after  verdict,  report,  or  decision,  as 
stated  in  a  preceding  volume,11  does  not  ordinarily  abate  the 
action,  and  hence  an  appeal  may  be  taken  thereafter  by  the 
personal  representatives  of  the  decedent  but  they  must  be  sub- 
stitued  before  the  appeal  is  heard.  Where,  after  judgment, 
the  plaintiff  dies,  and  the  cause  of  action  is  one  that  abates  by 
the  death  of  plaintiff,  such  as  an  action  to  recover  damages  for 
personal  injuries,  the  action  may  be  revived,  where  defendant 
was  successful,  to  relieve  the  estate  of  the  plaintiff  for  liability 
for  costs;  but  not,  it  seems,  to  permit  a  continuation  of  the 
action.12 

Personal  representatives  as  respondents.     "Where  the 

adverse  party  has  died,  since  the  making  of  the  order,  or  the 
rendering  of  the  judgment  appealed  from,  or  where  the  judg- 
ment appealed  from  was  rendered,  after  his  death,  in  a  case 
prescribed  by  law,  an  appeal  may  be  taken,  as  if  he  was  living ; 
but  it  cannot  be  heard,  until  the  heir,  devisee,  executor,  or  ad- 
ministrator, as  the  case  requires,  has  been  substituted  as  the 
respondent.  In  such  a  case,  an  undertaking  required  to  per- 
fect the  appeal,  or  to  stay  the  execution  of  the  judgment  or 
order  appealed  from,  must  recite  the  fact  of  the  adverse 
party's  death;  and  the  undertaking  enures,  after  substitution, 
to  the  benefit  of  the  person  substituted. ' ' 13  This  Code  pro- 
vision applies  to  the  case  of  a  death  of  the  "adverse"  party 
"before"  the  taking  of  an  appeal. 

10  Blake  v.  Griswold,  104  N.  Y.  613.  But  judgment  rendered  without 
knowledge  of  the  court  of  the  death,  after  exhaustive  argument,  will 
not  be  reiterated  after  the  granting  of  an  order  of  substitution.     Id. 

"  Volume  2,  pp.  2100-2103. 

12  Campbell  v.  Gallagher,  18  Civ.  Proc.  R.  (Browne)  90,  9  N.  Y.  Supp. 
432.  See,  also,  Pessini  v.  Wilkins,  54  Super.  Ct.  (22  J.  &  S.)  146;  Cor- 
bett  v.  Twenty-third  St.  R.  Co.,  114  N.  Y.  579. 

is  Code  Civ.  Proc.  §  1297.  Death  of  lunatic.  Matter  of  Beckwith, 
87  N.  Y.  503. 


§  2594  PARTIES  TO  APPEAL.  3675 


Substitution. 


Form   of  affidavit  on   motion  to   substitute    representative   as   re- 
spondent. 

[Title  of  cause.] 
[Venue.] 
A.  X.,  being  duly  sworn,  says: 

I.  That  he  is  . 

II.  That  on  the  day  of  ,  190 — ,  a  judgment  was  ren- 
dered in  the  above-entitled  action  by  the  court,  in  favor   of 

,  against  ,  for  ,  which  judgment  n  was  entered  in 


the county  clerk's  office  on  the day  of ,  190 — . 

III.  That  after  the  rendition  and  entry  of  the  said  judgment,  and  on 

the day  of ,  190 — ,  the  said died  intestate  [or  died 

"leaving  a  last  will  and  testament"]. 

IV.  That  was   appointed   administrator   of   the   property   of 

,  on  the day  of ,  190 — ,  by  the  surrogate  of 

county,  in  which  county  the  said  resided  at  the  time  of  his 

death.     [Or  as  follows:  "IV.  That  said  will  was  admitted  to  probate  on 

the day  of ,  by  the  surrogate  of county,  in  which 

county  the  said resided  at  the  time  of  his  death"]. 

V.  That   said   appealed   from   said   judgment   to   the   

court,  on  the day  of ,  190 — . 

[Jurat.]  [Signature.] 

Form  of  order. 

[Title  of  cause.] 

On  reading  and  filing  the  affidavit  of ,  dated  the  — : day  of 

,  190 — ,  by  which  it  appears  that  ;   and  on  reading  and 

filing  notice  of  this   motion,   with   proof   of   due   service   thereof   on 

;    and  on  reading  and  filing   [name  opposing  papers,  if  any]; 

and  after  hearing  ,  of  counsel  for  in  support  of  the  mo- 
tion, and  ,  of  counsel  for ,  in  opposition  thereto: 

It  is  hereby  ordered  that  said  [describe  person  substituted], 

be  and  hereby  is  substituted  as  respondent  in  the  place  of  said , 

as  the  respondent  in  the  said  appeal  brought  by  said  from  the 

said  judgment. 

To  what  court  application  to  be  made.     Where  the  ap- 


peal is  from  one  court  to  another,  an  application  for  an  order 
of  substitution  must  be  made  to  the  appellate  court.15     An  ap- 

"  if  the  appeal  is  from  an  order  instead  of  a  judgment,  state  the 
nature  of  the  order,  when  made  and  entered,  etc. 
is  Code  Civ.  Proc.  §  1299. 


3676  PARTIES  TO  APPEAL.  §  2594 

Substitution. 

peal  to  the  appellate  division  from  a  judgment  rendered  by 
the  supreme  court  is  not,  within  this  section,  an  appeal  "from 
one  court  to  another,"  but  in  such  case  the  motion  should  be 
made  at  special  term."1 

Procedure   to   obtain  substitution.     The   Code   chapter 

on  appeals  does  not  prescribe  how  the  substitution  shall  be 
had  or  name  the  person  to  be  substituted,  and  hence  the  pro- 
cedure is  to  be  governed  by  the  practice  in  the  trial  courts, 
as  laid  down  in  a  preceding  volume.17  Where  an  order  to  show 
cause  is  obtained  under  section  1298  and  on  the  return  day 
})roof  is  made  of  its  service  and  that  no  parties  have  been  sub- 
stituted, but  in  opposition  one  of  the  heirs  produced  an  affi- 
davit and  a  notice  of  motion,  with  proof  of  service,  to  substi- 
tute himself  as  a  party,  the  court  may  allow  a  substitution  on 
terms  and  affirm  the  judgment  as  to  the  heirs  who  fail  to  move 
for  substitution.18  Substitution  will  not  be  ordered  in  the 
court  of  appeals  merely  because  the  party  asking  it  has  ob- 
tained a  judgment  of  the  court  below,  in  a  cross  action,  declar- 
ing him  entitled  to  be  substituted  as  plaintiff  and  to  control  the 
action,  where  an  appeal  is  pending  from  such  judgment.10 

Since  all  orders  of  substitution,  both  of  parties  and  of  at- 
torneys, after  an  appeal  to  the  court  of  appeals,  should  be  ob- 
tained from  the  court  of  appeals,  it  is  desirable  that  the  re- 
turns in  causes  in  which  a  substitution  is  to  be  entered  before 
hearing  be  transmitted  to  the  clerk  before  application  for  sub- 
stitution be  made.  The  order  of  substitution,  when  made,  can 
then  be  attached  to  the  record,  and  be  properly  entered  in  the 
register  of  the  cause  which  is  opened  on  the  receipt  of  the  re- 
turn. If  an  order  of  substitution  is  obtained  in  the  court  be- 
low after  appeal  perfected,  a  copy  should  be  transmitted  to 
the  court  of  appeals  with  the  return.     An  order  of  substitution 

is  Campbell  v.  Friedlander,  51  App.  Div.  191,  64  N.  Y.  Supp.  241. 

it  Personal  representative  may  be  substituted.  People  ex  rel.  Fair- 
child  v.  Commissioners  of  Dept.  of  Fire  &  Bldgs.,  105  N.  Y.  674.  As- 
signee may  be  substituted  in  place  of  deceased  assignor.  Riley  v.  Git- 
terman,  24  Abb.  N.  C.  89,  10  N.  Y.  Supp.  38. 

is  Van  Home  v.  France,  32  Hun,  504. 

loGlenville  Woolen  Co.  v.  Ripley,  11  Abb.  Pr.  (N.  S.)  87. 


2591  PARTIES  TO  APPEAL.  3677 


Substitution. 


obtained  in  the  court  below  after  appeal  perfected  and  return 
transmitted,  a  copy  of  which  is  sent  to  the  clerk  of  the  court  of 
appeals,  is  not  considered  a  part  of  the  record  of  the  cause, 
and  is  not  noted  in  the  remittitur,  as  are  orders  of  substitution 
obtained  in  the  court  of  appeals  after  return  filed.  On  receipt 
of  consents  for  substitution,  properly  signed,  orders  are  en- 
tered accordingly,  by  the  clerk,  as  of  course.20 

Procedure  where  no  order  of  substitution  is  obtained. 

"Where  either  party  to  an  appeal  dies  before  the  appeal  is 
heard  *  *  #  ,  if  an  order  substituting  another  person  in 
his  place  is  not  made  within  three  months  after  his  death 
*  *  *  ,  the  court,  in  which  the  appeal  is  pending,  may,  in 
its  discretion,  make  an  order  requiring  all  persons  interested 
in  the  decedent's  estate  to  show  cause  before  it  why  the  judg- 
ment or  order  appealed  from  should  not  be  reversed  or  af- 
firmed, or  the  appeal  dismissed,  as  the  case  requires.  The  order 
must  specify  a  day  when  cause  is  to  be  shown,  which  must  not 
be  less  than  six  months  after  making  the  order;  and  it  must 
designate  the  mode  of  giving  notice  to  the  persons  interested. 
Upon  the  return  day  of  the  order,  or  at  a  subsequent  day,  ap- 
pointed by  the  court,  if  the  proper  person  has  not  been  substi- 
tuted, the  court,  upon  proof,  by  affidavit,  that  notice  has  been 
given  as  required  by  the  order,  may  reverse  or  affirm  the  judg- 
ment or  order  appealed  from  or  dismiss  the  appeal,  or  make 
such  further  order  in  the  premises  as  justice  requires."21 

Where  a  person  aggrieved,  entitled  by  law  to  be  substituted 
as  a  party,  "unreasonably  neglects  to  procure  an  order  of  sub- 
stitution the  appeal  may  be  dismissed,  on  motion  of  the  re- 
spondent." 22 

Form  of  affidavit  for  order  to  show  cause. 

[Title  of  cause.] 
[Venue.] 

A.  X.,  being  duly  sworn,  says: 
I.  That  he  is  . 


20  Smith,  Ct.  of  App.  Pr.  43. 

21  Code  Civ.  Proc.  §  1298.     See  Carr  v.  Rischer,  119  N.  Y   117.     Mapes 
v.  Knorr,  47  App.  Div.  639,  62  N.  Y.  Supp.  303. 

22  Code  Civ.  Proc.  §  1296. 


3678  PARTIES  TO  APPEAL.  g  2594 

Substitution. 

II.  Thai  on  the day  of ,  190 — ,  an  appeal  was  taken  by 

from  judgment  of  the court,  entered  in  the  above-entitled 

action  on  the  day    of   ,    for  ,    in    favor  of   

against .23 

III.  That  said  ,  the  appellant,   [or  "respondent"]   died  on  the 

—  day  of  ,  190 — ,  before  any  hearing  had  been  had  of  said 

appeal.24 

IV.  That  the  following  are  all  the  persons  interested  in  the  estate 

of  said ,  so  far  as  can  be  ascertained  by  deponent,  to-wit:  . 

That  the  inquiries  made  to  ascertain  who  are  the  persons  interested 
in  said  estate  are  as  follows:  

V.  That  no  order  has  been  made  substituting  any  other  person  in 
the  place  of  in  said  appeal. 

[Jurat.]  [Signature.] 


Form  or  order  to  show  cause. 

[Title  of  cause.]     At  a  special  term,  etc. 

On  reading  and  filing  the  affidavit  of  ,  dated  the  day 

of  ,  showing  [state,  in  substance,  contents  of  affidavit  as  to  tak- 
ing of  appeal,  death  of  party  pending  appeal,  and  the  failure  to  ob- 
tain an  order  of  substitution.] 

It  is  hereby  ordered  that  all   persons   interested   in  the  estate  of 

said show  cause  before  this  court,  at  a  term  thereof,  to  be  held 

at  ,  on  the  day  of  ,  190 — ,  why  the  said  judgment 

(or  order)  should  not  be  affirmed  [or  "reversed"  or  "why  the  appeal 
from  the  said  judgment  (or  order)  should  not  be  dismissed"]. '-5 

And  it  is  further  ordered  that  a  copy  of  this  order  and  a  copy  of  said 
affidavit  be  served  on  [name  persons  to  be  served]  by  [state  man- 
ner of  service],  on  or  before  the day  of ,  190 — . 

Form  of  order  on  return  of  order  to  show  cause. 

[Title  of  cause.]     At  a  special  term,  etc. 
An  order  having  been  hereuntofore  made  and  entered  in  this  action 

on  the  affidavit  of dated  the  day  of  ,  190 — ,  at  a 

special  term  of  this  court,  held  at on  the day  of , 

190 — ,  that  all  persons  interested  in  the  estate  of  show  cause 

at  this  term  why  the  judgment  (or  order)  entered  in  this  action  on  the 

23  if  the  appeal  is  from  an  order  instead  of  a  judgment,  state  the 
nature  of  the  order,  when  made  and  entered,  etc. 

24  Death  must  have  been  more  than  three  months  before  motion. 

2»  Day  designated  must  be  not  less  than  six  months  after  making 
the  order. 


§  259i  PARTIES  TO  APPEAL.  3679 


Substitution. 


190 — ,  should  not  be  affirmed   [or  "reversed"  or  "appeal  dis- 


missed"] ;    and  on  reading   (name  opposing  papers,  if  any) ;    and  on 

proof  by  the  affidavit  of of  service  of  said  order  to  show  cause 

and  the  affidavits  on  which  such  order  was  founded,  on  ,  on  or 

before  the  day  of  ,  190 — ,  as  prescribed  in  said  order; 

and  on  motion  of ,  attorney  for ,  and  after  hearing , 

attorney  for ,  in  opposition  thereto: 

It  is  hereby  ordered  that  the  said  judgment  (or  order)  be,  and  the 
same  hereby  is,  affirmed  [or  "reversed"  or  that  "the  appeal  from  said 
judgment  (or  order)  be  and  the  same  hereby  is  dismissed"]. 


CHAPTER  VI. 
TIME  TO  APPEAL. 

ART.    I.     GENERAL    CONSIDERATIONS. 

Resume  of  Code  provisions,  §  2595. 

Disabilities  as  preventing  running  of  time,  §  2596. 

Expiration  of  time  to  appeal  from  judgment  as  affecting  right 

to  appeal  from  order,  and  vice  versa,  §  2597. 
Premature  appeals,   §   2598. 
Procedure  where  order  made  by  judge  out  of  court  has 

not  been  entered. 
Extension  of  time,   §  2599. 

By  stipulation. 

Death  of  party  entitled  to  appeal. 

Computation  of  time,  §  2600. 

Procedure  where  appeal  not  taken  in  time,  §  2601. 

Waiver   of  objections. 

ART.   II.      NOTICE  TO   LIMIT  TIME  TO  APPEAL. 

Necessity,  §  2602. 
Who  must  serve,  §  2603. 
Person  to  be  served,  §  2604. 
Service  by  mail,  §  2605. 
Sufficiency  of  notice,  §  2606. 

Stating  time  and  place  of  entry  of  judgment  or  order. 

Statement  as  to  nature  of  judgment  or  order  appealed 

from. 

Signature. 

Copy  of  judgment  or  order. 

Waiver  of  objections. 

Effect  where  served  after  proceedings  are  stayed,  §  2607. 
New  notice,  §  2608. 

ART.   III.      TO   COURT   OF   APPEALS. 

Appeal  from  final  judgment,  §  2609. 

Cross-appeals. 

Appeal  from  order,  §  2610. 

Where  leave  to  appeal  is  necessary. 


§  2596 


TIME  TO  APPEAL. 


3681 


Art.  I.     General  Considerations. 


ART.   IV.     TO   APPELLATE   DIVISION    FROM    SUPREME   COURT. 
Code  rules,  §  2611. 

ART.  V.     TO   SUPREME   COURT   FROM    INFERIOR   COURT. 
Code  rules,  §  2612. 

ART.   I.     GENERAL  CONSIDERATIONS. 

§  2595.     Resume  of  Code  provisions. 

The  following  table  is  a  compilation  of  the  Code  provisions 
relating  to  the  time  to  appeal  to  the  court  of  appeals,  or  to  the 
appellate  division  from  the  supreme  court,  or  to  the  supreme 
court  from  an  inferior  court : 


Kind  of  Appeal. 


To  Court  of  Ap- 
peals. 


To  Appellate  Di- :  To  Supreme  Court 
vision  from  Su-  j  from  Inferior 
preme  Court.  Court. 


I.  From    j  udg- 
rnent. 


II.  From    order 
in  action. 


1  year  after  entry  30  days  from  serv-  |  30  days  from  serv- 
of  judgment  on  de-  ,  ice  of  copy  and  no-  ice  of  copy  and  no- 
cision  of  appellate    tice  of  entry.  tice  of  entry. 

division. 


_  60  days  from  serv-  30  days  from  serv- 
ice of  copy  and  no-  ice  of  copy  and  no- 
tice of  entry.  tice  of  entry. 


III.  From  order  60 days  from  serv-  30days  from  serv- 
i  n  special  :  ice  of  copy  and  no-  ice  of  ropy  and  no- 
proceeding,    tice  of  entry.  tice  of  entry. 


60  days  from  serv- 
ice of  copy  and  no- 
tice of  entry. 


30  days  from  serv- 
ice of  copy  and  no- 
tice of  entrv. 


§  2596.     Disabilities  as  preventing  running  of  time. 

The  Codes  of  many  states  provide  that  the  limitation  of  the 
time  for  taking  an  appeal  shall  not  run  against  persons  under 
certain  legal  disabilities,  such  as  infants,  lunatics,  married  wo- 
men, nonresidents,  convicts,  etc.,  but  no  such  rule  prevails  in 
this  state. 

N.  Y.  Prac—  231. 


3682  TIME  T0  appeal.  §  2598 

Art.  I.     General  Considerations. 

§  2597.    Expiration  of  time  to  appeal  from  judgment  as  af- 
fecting right  to  appeal  from  order,  and  vice  versa. 

An  appeal  may  be  taken  from  an  order  denying  a  new  trial 
though  the  time  to  appeal  from  the  judgment  has  expired.1 
And,  on  the  other  hand,  the  right  to  review  an  interlocutory 
judgment  or  an  intermediate  order,  on  an  appeal  from  a 
judgment,  where  the  notice  of  appeal  specifies  such  judgment 
or  order,  is  not  affected  by  the  expiration  of  the  time  within 
which  a  separate  appeal  therefrom  might  have  been  taken.2 

§  2598.    Premature  appeals. 

An  appeal  cannot  be  taken  from  a  judgment 3  or  order  i  until 
it  has  been  duly  entered  with  the  proper  clerk.  A  fortiori, 
no  appeal  can  be  taken  until  the  judgment  or  order  is  com- 
plete. For  instance,  where  a  judgment  awards  costs,  notice 
served  prior  to  the  taxation  and  entry  of  the  costs  does  not 
limit  the  time  for  appeal,5  unless  a  notice  of  waiver  of  costs  is 
served  with  a  copy  of  the  judgment  with  notice  of  its  entry; 6 
but  where  costs  are  taxed  without  notice  and  notice  of  retaxa- 
tion  at  once  given,  and  the  amount  entered  in  the  judgment 
by  the  clerk,  the  notice  to  limit  the  time  to  appeal  is  not  prema- 
ture though  afterwards,  on  retaxation,  the  costs  are  changed,7 

i  Whitman  v.  Johnson,  10  Misc.  725,  31  N.  Y.  Supp.  1009;  Harnett 
v.  Westcott,  14  Civ.  Proc.  R.  (Browne)  360,  2  N.  Y.  Supp.  10. 

^  Code  Civ.  Proc.  §  1316. 

s  Leavy  v.  Roberts,  8  Abb.  Pr.  310.  The  court  may  direct  that  unless 
the  successful  party  enter  judgment  within  a  specified  time,  the  defeat- 
ed party  may  do  so.  Wilson  v.  Simpson,  84  N.  Y.  674;  Knapp  v.  Roche, 
■46  Super.  Ct.  (14  J.  &  S.)  200. 

4  Gallt  v.  Finch,  24  How.  Pr.  193.  Order  made  out  of  court  must 
first  be  entered.  Code  Civ.  Proc.  §  1304.  That  denial  of  motion  for 
new  trial  can  not  be  reversed  unless  order  is  made  and  entered,  see 
vol.  3,  p.  2740. 

s  Thurber  v.  Chambers,  60  N.  Y.  29;  Sherman  v.  Wells,  14  How.  Pr. 
522.  In  the  latter  case,  taxation  of  costs  was  adjourned  to  a  certain 
day  but  on  the  day  before  such  day,  by  mistake,  the  costs  were  taxed, 
judgment  entered,  and  notice  given. 

e  Beinhauer  v.  Gleason,  44  Hun,  556. 

'  Hewitt  v.  City  Mills,  136  N.  Y.  211.  The  case  of  De  Mott  v.  Ken- 
drick,  63  Hun,  112,  17  X.  Y.  Supp.  630,  is  not  the  law  now. 


§  2598  TIME  T0  appeal.  3683 

Art.  I.     General  Considerations. — Premature  Appeal. 

since  the  Code  expressly  provides  in  such  a  case  8  that  the 
judgment  is  not  to  be  changed  but  that  the  amount  of  the  re- 
duction is  to  be  credited  on  the  execution. 

A  decision  of  a  special  term,  made  during  the  trial  of  an 
action,  cannot  be  reviewed  on  appeal  until  the  trial  has  been 
concluded  and  a  decision  made,  signed,  filed  and  excepted  to.9 
Where  final  judgment  is  entered  on  a  memorandum  opinion, 
before  the  filing  of  a  decision,  the  case  may  be  remitted  so 
that  a  formal  decision  may  be  made,  but  not  where  the  trial 
judge  is  no  longer  in  office  as  a  trial  judge.10 

If  there  are  several  appeals  to  the  appellate  division,  from 
the  same  judgment,  an  appeal  to  the  court  of  appeals  is  prema- 
ture if  taken  before  all  the  appeals  are  heard  and  disposed  of 
by  the  appellate  division.11 

Procedure  when  order  made  by  judge  out  of  court  has 

not  been  entered.  The  Code  expressly  provides  that  no  appeal 
can  be  taken  from  an  order  made  by  a  judge  out  of  court,  until 
it  has  been  entered  in  the  office  of  the  proper  clerk.12  How- 
ever, the  indorsement  by  the  county  clerk  of  the  word  "filed," 
as  of  a  certain  date,  on  an  order  made  by  a  judge  out  of  court, 
is  equivalent  to  an  entry  thereof.13 

Where  an  order  made  by  a  judge  out  of  court  has  not  been 
entered  in  the  office  of  the  proper  clerk,  or  the  papers  upon 
which  it  was  founded  have  not  been  filed  in  the  same  clerk's 
office,  the  judge  who  made  it,  or,  if  he  is  absent  or  unable,  or 
disqualified  to  act,  a  judge  of  the  court  in  or  to  which  an  ap- 
peal therefrom  may  be  taken  must,  upon  the  application  of  a 
party  or  other  person  entitled  to  take  such  an  appeal,  make 
an  order,  requiring  the  omission  to  be  supplied  within  a  speci- 
fied time  after  service  of  a  copy  of  the  order  made  by  him.1* 

This  order  may  be  made  upon  an  ex  parte  application.    The 

3  See  vol.  3,  p.  3039. 

o  Dickson  v.  Knapp,  17  App.  Div.  36,  44  N.  Y.  Supp.  636. 

loBurnham  v.  Denike,  54  App.  Div.  132,  66  N.  Y.  Supp.  396. 

ii  Muldoon  v.  Pitt,  54  N.  Y.  269,  274. 

12  Code  Civ.  Proc.  §  1304. 

is  O'Connor  v.  McLaughlin,  80  App.  Div.  305,  80  N.  Y.  Supp.  741. 

I*  Code  Civ.  Proc.  §  1304. 


3684  TIMB  T0  appeal.  g  259S 

Art.   I.     General  Considerations. — Premature  Appeal. 

motion  should  be  based  on  an  affidavit  showing  the  prior  appli- 
cation to  the  judge;  the  papers  on  which  the  application  was 
made  and  opposed;  the  making  of  an  order  thereon  stating 
generally  its  nature;  that  such  order  has  not  been  entered  in 
the  office  of  the  proper  clerk ;  or,  if  so  entered,  that  the  papers 
on  which  it  is  founded  have  not  been  filed  in  such  office,  and 
that  the  moving  party  is  thereby  prevented  from  appealing 
therefrom.  If  the  moving  party  is  not  a  party  of  record,  and  his 
right  to  take  such  appeal  does  not  otherwise  appear,  enough 
should  be  stated  in  the  moving  affidavit  to  show  at  least  a  pre- 
sumptive right  to  appeal.15  A  copy  of  this  order  and  of  the 
affidavit  on  which  it  was  granted  should  be  served  on  the  at- 
torney for  the  adverse  party.16 

On  proof,  by  affidavit,  that  a  copy  of  the  order  requiring  the 
entry  of  the  original  order  has  been  served,  and  that  the  omis- 
sion has  not  been  supplied,  the  same  judge  may  make,  on 
notice,  an  order  revoking  and  annulling  the  original  order.17 
Service  of  the  order,  or  notice,  should  be  on  the  attorney  for 
the  adverse  party.  If,  for  any  reason,  the  attorney  cannot 
be  served,  the  service  should  be  as  provided  for  by  section  1302 
of  the  Code. 

Form    of    affidavit   to    procure    order    requiring    entry    of    original 

order. 

[Title  of  cause.] 
[Venue.] 

A.  X.,  being  duly  sworn,  says: 
I.     That  he  is  . 


II.     That  an  order,  made  in  the  above-entitled  action  on  the 


day  of by  Hon. ,  judge  of ,  on  [state  motion  papers 

and  opposing  papers],  requiring to  [state. nature  of  order],  has 

not  been  entered  in  the  office  of  the  clerk  of county,  as  will  more 

fully  appear  from  the  certificate  of  said  clerk,  which  is  hereto  annexed. 
III.     That  the  place  of  trial,   designated  in  the  complaint  in  said 
action,  is  said  county  of . 

is  Baylies,  New  Trials  &  Appeals   (2nd  Ed.)   152,  153. 

l(i  Section  1304  provides  that  if  service  can  not  be  made  on  such 
attorney,  the  service  should  be  according  to  section  1302  of  the  Code 
as  set  forth  in  section  2634  of  this  work. 

i-  Code  Civ.  Proc.  §  1304. 


§  2599  TIME  TO  APPEAL.  3685 


Art.    I.     General    Considerations. 


IV.     That  desires  to  have  said  order  entered  in  order  that 

he  may  take  an  appeal  therefrom. 
[Jurat.]  [Signature.] 

Form  of  order. 

|  Title  of  cause.] 

It  appearing  to  me,  by  the  affidavit  of  ,  dated  the  day 

of ,  190 — ,  that  the  order  made  by ,  in  this  action,  on  the 

day  of  ,  190 — ,  requiring ,  has  not  been  entered  in 

the  proper  county  clerk's  office,  i.  e.,  the  county  clerk's  office; 

I  do  hereby  order  and  direct  that  said  order  be  entered  by  the  at- 
torney   for   ,   in   said    clerk's   office,    within   days    after 

service  on  him  of  a  copy  of  this  order. 

§  2599.    Extension  of  time. 

In  this  state,  there  is  no  power  in  the  court  to  relieve  a 
party  who  wholly  fails  to  take  an  appeal  in  due  time,  however 
meritorious  his  excuse,18  except  where  a  party  entitled  to  ap- 
peal has  died  before  the  right  to  appeal  expired,  and  except 
that  where  the  notice  of  appeal  is  filed  in  due  time  on  the  clerk, 
it  may,  in  specified  cases,  be  served  on  all  or  a  part  of  the  ad- 
verse parties  after  the  time  to  appeal  has  expired.19  The  Code 
expressly  provides  that  the  time  for  taking  an  appeal  cannot 
be  enlarged  by  the  court  when  it  is  statutory.20  What  the 
court  cannot  do  directly  it  cannot  do  indirectly."1  It  follows 
that  a  motion  to  set  aside  a  judgment  does  not  extend  the  time 
to  appeal  therefrom,22  and  the  court  cannot  set  aside  a  judg- 
ment to  enable  a  party  to  take  an  effectual  appeal,  when  the 
time  to  appeal  has  expired.23  So  the  order  appealed  from  can- 
is  Kelly  v.  Sheehan,  76  N.  Y.  325. 
i»  See  post,  §  2633. 

20  Code  Civ.  Proc.  §  784;  Hall  v.  City  of  New  York,  79  App.  Div.  102, 
108,  79  N.  Y.  Supp.  979. 

2i  Renouil  v.  Harris,  4  Super.  Ct.  (2  Sandf.)  641.  But  correcting  of 
errors  in  giving  security  is  not  enlarging  the  time  to  appeal.  Aldrich 
v.  Ketchum,  12  N.  Y.  Leg.  Obs.  319. 

22  Renouil  v.  Harris,  4  Super.  Ct.  (2  Sandf.)  641;  Bishop  v.  (Empire 
Transp.  Co.,  37  Super.  Ct.  (5  J.  &  S.)  17. 

23  Whitney  v.  Townsend,  7  Hun,  233;  Parsons  v.  Winne,  17  Wkly. 
Dig.  236. 


3686  TIME  T0  appeal.  §  2599 

Art.   I.     General   Considerations. — Extension   of. 

not  be  resettled  after  the  time  to  appeal  therefrom  has  ex- 
pired.-4 

Likewise,  an  amendment  or  modification  of  the  judgment  or 
order  does  not  extend  the  time  to  appeal  unless  it  relates  to  a 
material  matter  as  distinguished  from  a  mere  irregularity 
which,  when  corrected  or  supplied,  does  not  change  the  char- 
acter of  the  judgment  or  order.25  For  instance,  the  time  to  ap- 
peal from  an  order,  a  copy  of  which  has  been  served,  where 
immediately  after  its  entry  and  service,  notice  of  a  motion  to 
resettle  it  in  a  substantial  particular  is  given,  does  not  begin  to 
run  until  the  determination  of  the  application  to  resettle.20 
So  .where  an  order  required  modification  in  a  material  matter, 
and  several  days  were  occupied  in  its  correction,  the  fact  that 
the  corrected  order  was  made  to  take  effect  nunc  pro  tunc  will 
not  make  the  time  to  appeal  run  from  the  service  of  a  copy  of 
the  original  order  and  notice  of  its  entry.27  The  fact  that  costs 
awarded  by  the  judgment  were  afterwards  corrected  does  not 
extend  the  time  to  appeal.28 

So  an  order  staying  proceedings  on  the  judgment  does  not 
enlarge  the  time  within  which  to  appeal.29  So  the  substitution 
of  parties  does  not  affect  the  running  of  the  time,  where  not 
expressly  provided  otherwise  by  statute.30  So  a  notice  of  ap- 
peal- cannot  be  amended  as  to  make  it  effectual  as  an  appeal 
from  an  order  or  judgment  not  referred  to  in  the  original 
notice  of  appeal,  where  the  time  to  appeal  from  such  order  or 
judgment  has  expired.31 

The  time  to  appeal  from  a  judgment  is  not  extended  by  a 

2»  Stierle  v.  Union  R.  Co.,  11  Misc.  124,  31  N.  Y.  Supp.  1008. 

25  The  remedy  of  the  aggrieved  party  usually  is  to  appeal  from  the 
order  of  modification  or  amendment.  Hubbard  v.  Copcutt,  9  Abb.  Pr. 
(N.  S.)  289.     See,  also,  Matter  of  Beckwith,  87  N.  Y.  503,  507. 

26  Weeks  v.  Coe,  36  App.  Div.  339,  341,  55  N.  Y.  Supp.  263. 
27Rubin  v.  Miller,  61  N.  Y.  Supp.  1121. 

28  Wilson  v.  Palmer,  75  N.  Y.  250. 

-'■<  Renouil  v.  Harris,  2  Code  R.  71. 

so  Brown  v.  City  of  New  York,  9  Hun,  587,  590. 

3i  See  post,  §  2638. 


g  2600  TIME  TO  APPEAL.  3687 

Art.    I.     General   Considerations. 

motion  for  a  new  trial,  unless  a  stay  of  proceedings  is  obtained 
before  the  entry  of  judgment. 

Granting  an  extension  of  time  to  make  a  case  does  not  ex- 
tend the  time  to  appeal.32 

Where  a  decision  on  appeal  was  held  a  nullity  because  the 
court  had  no  authority  to  hear  it  but  the  party  who  recovered 
the  original  judgment  had  taken  no  steps  to  enforce  it  for 
some  nine  years,  he  may  be  restrained  from  enforcing  it  un- 
less he  consents  to  allow  an  appeal  as  if  brought  within  the 
time  prescribed  by  law.33 

By  stipulation.  In  most  of  the  states  the  time  to  ap- 
peal cannot  be  extended  by  a  stipulation  of  the  parties  but 
the  rule  is  otherwise  in  this  state.34  However,  a  stipulation 
extending  the  time  to  serve  a  case  which  does  not  in  terms  ex- 
tend the  time  to  appeal  does  not  also  extend  the  time  to  serve 
a  notice  of  appeal.35 

Death  of  party  entitled  to  appeal.  Where  a  party  en- 
titled to  appeal  dies  before  the  expiration  of  the  time  within 
which  the  appeal  may  be  taken,  the  court  may  allow  the  appeal 
to  be  taken  by  the  heir,  devisee  or  personal  representative  of  the 
decedent,  at  auy  time  within  four  months  after  his  death.36 

§  2600.     Computation  of  time. 

The  general  rules  as  to  computation  of  time,  as  laid  down 
in  a  preceding  volume,37  apply.38  If  the  day  on  which  the 
limit  for  an  appeal  would  ordinarily  have  expired  is  a  public 

32Durrant  v.  Abendroth,  53  Super.  Ct.  (21  J.  &  S.)  15. 

33  Jacobs  v.  Morange,  1  Daly,  523. 

34Bagley  v.  Jennings,  58  Hun,  56,  11  N.  Y.  Supp.  386;  Jacobs  v. 
Morange,  1  Daly,  523. 

ss  Sails  v.  Butler,  27  How.  Pr.  133;  Durant  v.  Abendroth,  8  Civ.  Proc. 
R.   (Browne)   87.  *  . 

36  Code  Civ.  Proc.  §  785. 

st  Volume  1,  p.  694. 

38  See  Mason  v.  Jones,  1  Code  R.  (N.  S.)  335;  Gallt  v.  Finch,  24  How. 
Pr.  193. 


3688  TIME  T0  appeal.  §  2602 

Art.   11.     Notice  to  Limit  Time  to  Appeal. 

holiday  and  the  next  day  is  Sunday  the  time  does  not  expire 
until  Monday.88 

§  2601.    Procedure  where  appeal  not  taken  in  time. 

If  notice  of  appeal  is  served  too  late,  it  should  be  immedi- 
ately returned  with  an  indorsement  of  the  reason  therefor. 
Returning  the  notice  of  appeal,  indorsed  with  the  reason  for 
the  return,  is  sufficient,  where  it  is  served  too  late,  though  other 
papers  subsequently  served,-  including  copies  of  the  printed 
ease,  are  retained.40  An  appeal  not  taken  within  the  prescribed 
time  will  be  dismissed  on  motion  provided  the  objection  has 
not  been  waived.41 

Waiver  of  objection.     An  admission  of  due  service  of 

the  notice  of  appeal,  where  the  notice  is  not  served  until  after 
the  time  to  appeal  has  expired,  is  effectual  as  a  waiver  if  the 
notice  has  been  filed  with  the  clerk  in  time,  but  not  otherwise.42 
So  an  appearance  in  the  appellate  court,  and  submitting  points 
on  the  merits,  though  including  a  protest  against  the  jurisdic- 
tion of  the  court,43  or  the  admission  of  due  service  of  the  notice 
of  argument  of  the  appeal,  and  the  allowing  two  terms  of  court 
to  pass  without  moving  to  dismiss  the  appeal,44  or  the  noticing 
the  appeal  for  argument,45  have  been  held  to  waive  the  right 
to  object  that  the  notice  of  appeal  was  not  served  in  time. 

ART.    II.     NOTICE    TO    LIMIT    TIME    TO    APPEAL. 

§  2602.     Necessity. 

There  is  no  limit  on  the  time  to  appeal,  except  to  the  court 
of  appeals  from  a  final  judgment,  unless  notice  of  the  judg- 

39  Lucia  v.  Omel,  53  App.  Div.  641,  66  N.  Y.  Supp.  1136.  Same  point, 
Id.,  46  App.  Div.  200,  61  N.  Y.  Supp.  659. 

40  Marsh  v.  Pierce,  110  N.  Y.  639. 

4iGoetz  v.  Metropolitan  St.  R.  Co.,  54  App.  Div.  365,  367,  66  N.  Y. 
Supp.  666. 

42  Waring  v.  Senior,  48  How.  Pr.  226. 

43  Pickersgill  v.  Read,  7  Hun,  636,  640. 

44  Stubbs  v.  Stubbs,  11  Wkly.  Dig.  243. 

45  Pearson  v.  Lovejoy,  53  Barb.  407. 


2603  TIME  T0  appeal.  3689 


Art.   II.     Notice   to  Limit  Time   to  Appeal. 


ment  or  order  appealed  from  is  given  by  the  successful  party.46 
This  notice  must  be  a  written  notice.47  The  notice  is  necessary 
even  though  the  appeal  is  taken  from  a  judgment  or  order  en- 
tered by  the  appellant  himself,48  or  the  appellant  has  procured 
a  copy  of  the  order  entered,49  since  notice  of  the  entry  of  the 
judgment  or  order  appealed  from  is  necessary  though  the  de- 
feated party  already  possesses  all  the  knowledge  which  would 
be  conveyed  to  him  by  such  written  notice.50 

§  2603.    Who  must  serve. 

The  notice  must  be  served  by  the  attorney  for  the  successful 
party,  i.  e.,  the  party  who  will  oppose  a  modification  or  reversal 
on  appeal.51  Service  of  notice  by  the  attorney  for  the  ' '  defeat- 
ed" party  on  the  attorney  for  the  "successful"  party,  does  not 
limit  the  time  to  appeal.52 

Notice  of  entry  served  on  behalf  of  the  successful  plaintiff  on 
the  attorney  for  all  the  defendants  limits  the  time  to  appeal  by 
a  defendant  as  against  his  co-defendant,  and  it  is  not  neces- 
sary that  notice  be  given  in  behalf  of  such  co-defendant.53 
A  defendant  successful  as  against  a  co-defendant  need  not 
serve  a  copy  of  the  judgment  on  the  latter,  with  notice  of  its 
entry,  to  limit  the  latter 's  time  to  appeal,  except  in  cases  where 
cross-answers  have  been  served  between  defendants  and  judg- 
ment is  entered  in  favor  of  one  defendant  against  another.54 

46  Except  as  stated,  mere  lapse  of  time,  where  no  notice  is  served 
to  limit  the  time  to  appeal,  does  not  bar  the  right  to  appeal.  Anderson 
v.  Carter,  24  App.  Div.  462,  49  N.  Y.  Supp.  255. 

47  Fry  v.  Bennett,  7  Abb.  Pr.  352. 

48  Rankin  v.  Pine,  4  Abb.  Pr.  309.  Cited  with  approval  in  Matter  of 
New  York  Cent.  &  H.  R.  R.  Co.,  60  N.  Y.  112  and  followed  in  New 
Rochelle  Gas  Co.  v.  Van  Benschoten,  47  App.  Div.  477,  62  N.  Y.  Supp. 
398. 

49  Fry  v.  Bennett,  7  Abb.  Pr.  352. 

so  Staring  v.  Jones,  13  How.  Pr.  423. 

si  Kilmer  v.  Hathorn,  78  N.  Y.  228.  Kubin  v.  Miller,  61  N.  Y.  Supp. 
1121;  Fry  v.  Bennett,  7  Abb.  Pr.  352. 

52  McGruer  v.  Abbott,  47  App.  Div.  191,  62  N.  Y.  Supp.  123. 

68  Morrison  v.  Morrison,  16  Hun,  507. 

54  Fairchild  v.  Edson,  81  Hun,  80,  30  N.  Y.  Supp.  615. 


3690  TIME  TO  APPEAL.  §2606 

Art.   II.     Notice  to  Limit  Time  to  Appeal. 

§  2604.     Person  to  be  served. 

To  limit  the  time  for  appeal,  the  service  of  the  copy  of  the 
judgment  or  order,  where  necessary,  must  be  made  on  the  at- 
torney for  the  appellant,55  except  that  where  the  appeal  is 
from  a  final  order  in  a  special  proceeding  and  the  appellant 
has  not  appeared  by  attorney  the  service  may  be  on  the  appel- 
lant personally.56 

Serving  notice  on  an  attorney  who  has  made  an  unauthor- 
ized appearance  is  not  sufficient,57  but  service  on  a  firm  of  at- 
torneys who  gave  an  admission  in  the  name  of  the  attorney  of 
record,  which  they  were  authorized  to  do,  is  sufficient,  especi- 
ally where  they  had  had  nearly  the  exclusive  management  of 
the  case.58 

§  2605.     Service  by  mail. 

Service  of  notice  by  mail  is  effectual  though  the  notice  is  not 
received.59 

§  2606.     Sufficiency  of  notice. 

The  courts  favor  the  right  of  appeal.  It  follows  that  a  party 
will  not  be  held  deprived  of  his  right  to  appeal  by  the  lapse  of 
time  unless  the  successful  party  has  strictly  complied  with 
the  Code  provisions  allowing  him  to  limit  the  time  within 
which  the  defeated  party  can  appeal.60  But  while  strict  com- 
pliance with  the  statutes  is  required  to  limit  the  time  of  a 
party  to  appeal,  yet  the  statute  should  not  be  so  rigidly  con- 

ss  Code  Civ.  Proc.  §§  1325,  1341,  1343,  1351,  1359.  Fry  v.  Bennett,  7 
Abb.  Pr.  3525.  On  appeal  from  final  order  in  special  proceeding, 
service  may  be  on  the  attorney  in  fact  of  the  appellant  if  he  appeared 
by  such  an  attorney.    Id.  §  1359. 

so  Code  Civ.  Proc.  §  1359. 

57  Bates  v.  Voorhees,  20  N.  Y.  525,  529. 

58  Chase  v.  Bibbins,  71  N.  Y.  592. 

59  Miller  v.  Shall,  67  Barb.  446.  Service  by  mail  gives  double  time 
to  serve  the  notice  of  appeal.    See  vol.  1,  p.  662. 

eo  pickersgill  v.  Read,  7  Hun.  636;  De  Mott  v.  Kendrick,  63  Hun.  112, 
17  N.  Y.  Supp.  630;  Livingston  v.  New  York  El.  R.  Co.,  60  Hun,  473 
15  N.  Y.  Supp.  191. 


§  2606  TIME  TO  APPEAL.  3691 

Art.   II.     Notice   to  Limit  Time  to  Appeal. 


strued  as  to  nullify  its  object  or  to  make  it  difficult  of  applica- 
tion.01 

Service  of  a  copy  of  the  judgment  or  order  appealed  from, 
with  written  notice  of  the  entry  thereof, .is  required.  The 
notice  of  entry  is  usually  indorsed  on  the  copy  of  the  judgment 
or  order  served.  It  must  be  a  "written"  notice.62  Service 
of  a  copy  of  an  order  -or  judgment,  without  notice  of  the  entry 
of  the  original,  is  not  sufficient.03 

The  notice  must  be  so  given  that  the  attention  of  the  party 
served  cannot  fail  to  be  arrested  by  it.  If  it  is  served  in  con- 
nection with  another  paper,  it  must  be  so  placed  that  it  can- 
not fail  to  be  observed  if  the  papers  are  examined.  The  notice 
must  be  so  given  that  failure  to  observe  it  would  constitute 
negligence.04  Thus,  the  notice  is  not  sufficient  where  indorsed 
on  the  back  of  a  cover  and  the  cover  is  so  folded  that  the  notice 
is  not  observable  unless  the  cover  is  opened  and  read  on  the 
back.65 

Stating  time  and  place  of  entry  of  judgment  or  order. 

The  notice  must  state  when  and  where  the  judgment  or  order 
appealed  from  was  entered.  It  must  state  the  county  where 
entered  and  the  clerk  with  whom  entered.00  It  is  not  sufficient 
where  the  date  of  the  entry  of  the  judgment  was  omitted, 
though  such  date  was  contained  in  other  papers  served.67 
There  is  a  conflict  in  the  decisions  as  to  whether  a  notice  that 
a  judgment  has  been  duly  "filed"  instead  of  entered  is  suf- 
ficient notice  of  entry  thereof.08 

Statement  as  to  nature  of  judgment  or  order  appealed 

from.     The  reference  in  the  notice  to  the  judgment  or  order 

6i  Guarantee  Trust  Co.  v.  Philadelphia,  R.  &  N.  E.  R.  Co.,  160  N.  Y. 
1 

62  See  ante,  §  2602. 

es  Kubin  v.  Miller,  61  N.  Y.  Supp.  1121. 

64  Weeks  v.  Coe,  36  App.  Div.  339,  342,  55  N.  Y.  Supp.  263. 

65  Weeks  v.  Coe,  36  App.  Div.  339,  342,  55  N.  Y.  Supp.  263. 

66  Walton  v.  National  Loan  Fund  Life  Assur.  Soc,  19  How.  Pr.  515; 
Livingston  v.  New  York  El.  R.  Co.,  60  Hun,  473,  15  N.  Y.  Supp.  191. 

67  Curtis  v.  Ritzman,  7  Misc.  400,  27  N.  Y.  Supp.  971. 

es  That  it  is,  see  Mohr  v.  Dorschel,  15  Civ.  Proc.  R.  22.  That  it  is 
not,  see  Gabay  v.  Doane,  38  Misc.  661,  78  N.  Y.  Supp.  224. 


3692  TIME  T0  appeal.  §  2606 

Art   II.     Notice   to  Limit  Time   to  Appeal. 

appealed  from  must  not  vary  from  such  judgment  or  order. 
For  instance,  a  notice  stating  that  the  copy  is  of  an  order 
"made"  and  entered  on  a  certain  day  is  insufficient  to  start 
the  time  running  .where  the  order  itself  shows  that  it  was 
made  several  days  before  the  day  specified.09  So  a  notice  of 
entry  of  "order  of  judgment"  is  insufficient  as  notice  of  entry 
of  an  order  denying  a  motion  for  a  new  trial.70 

Signature.     The  notice  of  entry  of  judgment  does  not 

limit  the  time  within  which  to  appeal  where  neither  the  copy 
of  the  judgment  served  nor  the  notice  of  entry  was  indorsed 
or  subscribed  with  the  name  of  the  attorney  and  his  office  ad- 
dress or  place  of  business ; 71  though  it  is  not  necessary  that 
the  attorney's  name  and  address  be  subscribed  to  the  notice  if 
it  appears  from  the  copy  of  the  order  or  judgment.72 

Copy  of  judgment  or  order.     Notice  of  entry  of  the 

judgment  or  order  appealed  from  is  not,  of  itself,  sufficient. 
There  must  be  served,  in  addition,  a  copy  of  such  judgment  or 
order.73  The  copy  of  a  judgment  served  must  be  attested  by 
the  clerk.74  It  is  insufficient  where  neither  signed  by  the  clerk 
nor  containing  any  amount  of  costs  inserted  therein.75  But  it 
is  not  necessary  that  the  copy  served  should  be  certified  by  the 
clerk  to  be  a  true  copy.76     And  where  the  copy  served  is  not 

G9  Weeks  v.  Coe,  36  App.  Div.  339,  342,  55  N.  Y.  Supp.  263. 

to  Wunch  v.  Shankland,  59  App.  Div.  482,  69  N.  Y.  Supp.  349. 

"Langdon  v.  Evans,  29  Hun,  652;   Kelly  v.  Sheehan,  76  N.  Y.  325; 

Sheridan  v.  Andrews,  81  N.  Y.  650;  Forstmann  v.  Shudting,  107  N.  Y. 
644. 

"Harnett  v.  Westcott,  56  Super.  Ct.  (24  J.  &  S.)  129,  14  Civ.  Proc. 
R.  360,  2  N.  Y.  Supp.  10. 

73  Rollins  v.  Wood,  16  Hun,  586.  Service  of  certified  copy  of  the 
order  bearing  the  words  "copy  order,  etc.,"  indorsed,  is  sufficient. 
3aker  v.  Hatfield,  3  Civ.  Proc.  R.  303.  Notice  is  sufficient  where  a  copy 
of  the  order  is  set  out  in  full,  is  certified  to  by  the  clerk  as  a  correct 
copy,  and  it  shows  that  it  has  been  entered.  Devlin  v.  City  of  New 
York,  62  How.  Pr.  166. 

i*  Good  v.  Deland,  119  N.  Y.  153.  Livingston  v.  New  York  El.  R.  Co., 
60  Hun,  473,  15  N.  Y.  Supp.  191. 

•  5  Mason  v.  Corbin,  29  App.  Div.  602,  51  N.  Y.  Supp.  178. 

76  Levien  v.  Webb,  30  Misc.  742,  63  N.  Y.  Supp.  155. 


§  2607  TIME  TO  appeal.  3693 

Art.   II.     Notice   to  Limit  Time   to  Appeal. 

folioed,  the  party  must  return  it  with  notice  of  the  irregularity. 
He  cannot  retain  it  and  then  claim  that  the  service  was  inef- 
fectual to  limit  his  time  to  appeal.77  The  copy  of  judgment 
served  is  insufficient  where  it  differs  from  the  original  as  to  its 
date  and  as  to  the  presence  of  a  seal,  and  the  copy  is  signed 
"Thos.    "    while    the     original    is    signed    "Thomas 


Form  of  notice  of  entry  of  judgment. 

[Title  of  cause.] 

Please  take  notice  that  the  judgment  in  this  action,  of  which  the 
within  is  a  copy,  was  entered  in  the  office  of  the  clerk  of  the  county 
of ,  on  the day  of ,  190—. 

[Date.] 
[Signature  and  office  address  of  attorney  for  successful  party.] 

[Address  to  attorney  for  opposing  party.] 

Form  of  notice  of  entry  of  order. 

[Title  of  cause.] 

Please  take  notice  that  the  within  order,  made  in  the  above-entitled 

action  is  a  copy  of  an  order  of  the court  entered  in  the  1 

county  clerk's  office  on  the  day  of  ,  190 — . 

[Date,  address,  and  signature  as  in  preceding  form.] 

Waiver  of  objections.     An  appellant  who  has  admitted 


due  and  timely  service  of  a  judgment  and  notice  of  its  entry 
cannot  afterward  claim  that  there  was  any  irregularity  in 
the  contents  of  the  notice  of  entry.79 

§  2607.    Effect  where  served  after  proceedings  are  stayed. 

After  a  party's  proceedings  have  been  stayed,  his  entry  of 
judgment  and  service  of  notice  thereof  is  a  nullity  and  will  not 
limit  the  time  to  appeal 80  although,  as  already  stated,  a  stay 

it  New  York  City  Baptist  Mission  Soc.  v.  Tabernacle  Baptist 
Church,  9  App.  Div.  527,  41  N.  Y.  Supp.  720. 

ts  Gabay  v.  Doane,  38  Misc.  661,  78  N.  Y.  Supp.  224. 

to  Mohr  v.  Dorschel,  15  Civ.  Proc.  R.  22,  16  State  Rep.  766. 

soKerner  v.  Steck,  18  Civ.  Proc.  R.  (Browne)  9  N.  Y.  Supp.  303.  In 
such  case  it  is  proper  for  the  court  to  set  aside  the  notice  of  entry  of 
judgment.     Id. 


3694  TIME  TO  APPEAL.  §2609 

Art.  III.     To  Court  of  Appeals. 

of  proceedings  after  judgment  does  not  extend  the  time  to  ap- 
peal. 

§  2608.    New  notice. 

If,  after  notice  is  given,  the  judgment  is  materially  amended, 
even  where  nunc  pro  tunc,  a  new  notice  is  necessary  to  limit 
the  time  to  appeal  from  the  amended  judgment.81 

ART.    III.     TO   COURT   OF   APPEALS. 

§  2609.    Appeal  from  final  judgment. 

An  appeal  to  the  court  of  appeals,  from  a  final  judgment, 
must  be  taken  within  one  year  after  final  judgment  is  entered 
on  the  determination  of  the  appellate  division  and  the  judg- 
ment roll  filed.8-  For  the  purpose  of  limiting  the  time  to  ap- 
peal, judgment  must  be  entered  on  the  decision  of  the  appellate 
division.83  Where  an  appeal  is  taken  to  the  appellate  division 
from  a  judgment  and  from  an  order  denying  a  new  trial,  and  it 
affirms  both  the  judgment  and  the  order,  an  appeal  taken  be- 
fore the  entry  of  the  judgment  of  affirmance,  is  nugatory  not 
only  as  an  appeal  from  the  judgment  but  also  as  an  appeal 
from  the  order  of  the  appellate  division  in  so  far  as  it  affirms 
the  order  denying  a  new  trial.84 

All  that  the  successful  party  has  to  do  is  to  enter  his  judg- 
ment and  file  the  judgment  roll.  No  notice  of  such  entry  need 
be  given  to  limit  the  time  to  appeal.85 

Cross  appeals.     If  the  respondent,   on  appeal  from  a 

final  judgment  as  provided  for  in  section  1350  of  the  Code, 

si  Smith  v.  Evans,  1  Abb.  N.  C.  396.  New  notice  need  not  be  served, 
however,  where  there  is  merely  an  order  allowing  a  modification,  with- 
out an  actual  modification.     Wilson  v.  Palmer,  75  N.  Y.  250. 

82  Code  Civ.  Proc.  §  1325.  Fractions  of  a  day  will  not  be  counted 
where  appeal  is  taken  on  same  day,  but  before,  the  judgment  roll  is 
filed.    Blydenburgh  v.  Cotheal,  4  N.  Y.  (4  Comst.)  418. 

83Knapp  v.  Roche,  82  N.  Y.  366;  Robinson  v.  Govers,  138  N.  Y.  425, 
430. 

si  Derleth  v.  De  Graff,  104  N.  Y.  661. 

ss  Marsh  v.  Pierce,  110  N.  Y.  639. 


§  2610  TIMB  T0  APPEAL.  3695 


Art.  III.     To  Court  of  Appeals. 


elects  to  bring  up  for  review  the  determination  of  the  ap- 
pellate division  affirming  an  interlocutory  judgment,  or  refus- 
ing a  new  trial,  as  the  case  may  be,  he  may  take  a  cross  appeal 
therefrom,  notwithstanding  the  expiration  of  the  time  to  take 
an  original  appeal  therefrom.86 

§  2610.     Appeal  from  order. 

An  appeal  to  the  court  of  appeals  from  an  order  must  be 
taken  within  sixty  days  after  service,  upon  the  attorney  for 
the  appellant,  of  a  copy  of  the  order  appealed  from  and  a  writ- 
ten notice  of  the  entry  thereof.87 

The  general  rules,  already  considered,88  as  to  the  necessity  S9 
and  sufficiency  90  of  the  notice,  apply.  Service  of  a  copy  of 
an  order  of  the  appellate  division,  with  notice  of  its  entry  in 
the  office  of  the  county  clerk,  though  in  fact  the  order  was 
entered  with  the  clerk  of  the  appellate  division,  and  a  certified 
copy  filed  with  the  county  clerk,  is  sufficient.91  The  time  to 
appeal  from  an  order  of  the  appellate  division  granting  a  new 
trial  does  not  begin  to  run  from  the  time  such  order  is  entered 
and  notice  given  of  its  entry,  where  the  judgment  of  reversal 
is  not  then  entered.  The  time  does  not  begin  to  run  until 
both  are  entered,  together  or  separately,  and  notice  thereof 
given.  In  other  words,  notice  of  entry  of  an  order  granting  a 
new  trial,  on  a  reversal  by  the  appellate  division,  does  not 
start  the  time  to  running  within  which  an  appeal  can  be  taken, 

86  Code  Civ.  Proc.  §  1350. 

87  Code  Civ.  Proc.  §  1325.  Applies  to  final  order  in  certiorari  pro- 
ceedings. People  ex  rel.  Walkill  Valley  R.  Co.  v.  Keator,  101  N.  Y. 
610.  Review  on  appeal  from  final  judgment,  of  interlocutory  judgment 
or  intermediate  order,  though  time  to  appeal  therefrom  has  expired, 
see  ante,  §  2597. 

ss  See  ante,  §§  2602,  260G. 

so  Knowledge  of  the  order  will  not  limit  the  time  for  appealing.  Mat- 
ter of  New  York  Cent.  &  H.  R.  R.  Co.,  60  N.  Y.  112. 

»o  Service  of  a  copy  of  a  report  is  not  sufficient.  Matter  of  New 
York  Cent.  &  H.  R.  R.  Co.,  60  N.  Y.  112.  Notice  must  refer  to  entry 
of  order. 

oi  Guarantee  Trust  &  Safe  Deposit  Co.  v.  Philadelphia,  R.  &  N.  E. 
R.  Co.,  160  N.  Y.  1. 


3696  TIME    TO   APPEAL.  ^2611 

Art.  IV.     To  Appellate  Division  From  Supreme  Court. 

but  the  time  does  not  begin  to  run  until  the  judgment  of  re- 
versal is  also  entered.92 

Where  leave  to  appeal  is  necessary.     Where  leave  is 

accessary  to  appeal  to  the  court  of  appeals,  the  appeal  must  be 
taken  within  sixty  days  after  such  leave  to  appeal  has  been 
granted,  provided  a  copy  of  the  order  appealed  from  and 
notice  of  its  entry  is  properly  served.93  Where  an  appeal  as  of 
right  is  taken  from  an  order  appealable  only  by  leave,  within 
the  sixty  days  from  service  of  the  order  and  notice  of  its  entry 
but  before  leave  to  appeal  is  granted,  the  appeal  cannot  be  val- 
idated by  a  leave  to  appeal  granted  nunc  pro  tunc  as  of  the 
day  the  notice  of  appeal  was  served,  where  no  new  notice  of 
appeal  is  served,  since  the  court  cannot  indirectly  extend  the 
time  to  appeal  any  more  than  it  can  directly  extend  such  time.94 


ART.   IV.     TO   APPELLATE    DIVISION    FROM    SUPREME   COURT. 

§  2611.     Code  rules. 

An  appeal  to  the  appellate  division  from  an  order  or  judg- 
ment made  in  an  action  in  the  supreme  court  must  be  taken 
within  thirty  days  after  service  on  the  attorney  for  the  ap- 
pellant of  a  copy  of  the  judgment,  or  order,  appealed  from, 
and  a  written  notice  of  the  entry  thereof.95 

An  appeal  from  an  order  made  in  a  special  proceeding  must 
be  taken  within  thirty  days  after  service  of  a  copy  of  the  final 
order,  from  which  it  is  taken,  with  a  written  notice  of  the  entry 
thereof,  upon  the  appellant;  or  if  he  appeared  upon  the  hear- 
ing by  an  attorney  at  law  or  an  attorney  in  fact  upon  the 
person  who  so  appeared  for  him.96 

'■'-  "Wingert  v.  Krakauer,  180  N.  Y.  265,  which  construes  section  1318 
of  the  Code. 

■■'■■  Lane  v.  Wheeler,  101  N.  Y.  17;  Porter  v.  International  Bridge 
Co.,  163  N.  Y.  79.  Time  when  leave  to  appeal  must  be  applied  for, 
see  post,  §  2615. 

ot  Guarantee  Trust  Co.  v.  Philadelphia,  R.  &  N.  E.  R.  Co.,  160  N.  Y.  1. 

»5  Code  Civ.  Proc.  §  1351. 

ftG  Code  Civ.  Proc.  §  1359. 


§  2612  TIME    TO   APPEAL.  3697 

Art.  V.     To  Supreme  Court  From  an   Inferior  Court. 

The  general  rules  already  laid  down  govern  the  notice  to 
limit  the  time  to  appeal. 


ART.  V.  TO  SUPREME  COURT  FROM  AN  INFERIOR  COURT. 

§  2612.     Code  rules. 

An  appeal  to  the  supreme  court  from  a  final  judgment  of  an 
inferior  court  of  record  must  be  taken  within  thirty  days  after 
service  on  the  attorney  for  the  appellant,  of  a  copy  of  the  judg- 
ment, and  written  notice  of  the  entry  thereof.97  If  the  appeal 
is  from  an  order,  the  appeal  must  be  taken  within  sixty  days 
after  service  on  the  attorney  for  the  appellant  of  a  copy  of  the 
order  and  written  notice  of  the  entry  thereof.9S 

97  Code  Civ.  Proc.  §  1341. 
as  Code  Civ.  Proc.  §  1343. 

N.  Y.  Prac—  232. 


CHAPTER  VII. 
TAKING  THE  APPEAL. 

ART.  I.  LEAVE  TO  APPEAL. 

(A)  TO  COURT  OF  APPEALS. 

Judgments  or  orders  as  to  which  leave  to  appeal  is  neces- 
sary, §  2613. 
To  whom  application  to  be  made,  §  2614. 
Time  for  motion,  §  2615. 
Motion  papers,  §  2616. 

Notice  of  motion. 

Stay  of  proceedings  pending  application  for  leave,  §  2617. 
When  leave  to  appeal  should  be  granted.  §  2618. 
Order,  §  2619. 

Allowance  nunc  pro  tunc. 

Effect  of  leave  to  appeal,  §  262" 

(B)  TO  APPELLATE  DIVISION. 

Code  provision,  §  2621. 

To  whom  application  to  be  made,  §  2622. 

Time  for  motion,  §  2623. 

Motion  papers,   §   2624. 

When  leave  to  appeal  should  be  granted,  §  2625 

Order,  §  2626. 

(C)  SECOND   OR   FURTHER   APPEALS. 

General  rule,  §  2627. 

ART.   II.     NOTICE   OF  APPEAL. 

Necessity,  §  2628. 

Who  may  give  notice,  §  2629. 

Form  and  contents,  §  2630. 

Reference  to  judgment  or  order  appealed  from. 

Stipulation  for  judgment  absolute. 


TAKING  THE  APPEAL.  3399 


Analysis. 


Review  of  interlocutory  judgment  or  intermediate  order  on 
appeal  from  final  judgment  or  final  order,  §  2631. 

Amendment  of  notice. 

Effect  of  expiration  of  time  within  which  to  appeal. 

Sufficiency  of  notice  of  intention  to  review. 

What  is  an  "intermediate"  order. 

What   is   an   order  which    "necessarily   affects   the   final 

judgment." 

Successive  reviews  of  interlocutory  judgment  or  inter- 
mediate order. 

Signature,  §  2632. 

To  whom  notice  must  be  given,  §  2633. 

Supplying  omission  to  give  notice  to  all. 

Person  who  must  be  served,  §  2634. 

Where  attorney  cannot  be   served. 

Mode  of  service,  §  2635. 

Piling  with  clerk. 

Time  of  service,  §  2636. 

Compelling  acceptance  of  service,  §  2637. 

Amendment,  §  2638. 

Waiver  of  objections,  §  2639. 


ART.  III.  SECURITY  TO  PERFECT  APPEAL. 

Necessity  on  appeal  to  court  of  appeals,  §  2640. 

Appeal  by  people  or  officer. 

Appeal   by   domestic   municipal   corporation. 

Necessity  on  appeal  to  appellate  division  or  supreme  court, 

§  2641. 
Form  and  contents,  §  2642. 

One   or   more   undertakings. 

Sureties,  §  2643. 

Service,  §  2644. 

New  undertaking,  §  2645. 

Effect  as  perfecting  appeal,  §  2646. 

Vacating  or  setting  aside,  §  2647. 

Supplying  omission  to  give,  §  2648. 

Liability  on  undertaking,  §  2649. 

Deposit  in  lieu  of  undertaking,  §  2650. 


ART.  IV.  CURING  DEFECTS  IN  TAKING  THE  APPEAL. 

Code  provision,  §  2651. 


3700  TAKING  THE  APPEAL.  §2615 

Art.   I.     Leave  to  Appeal. — A.   To  Court  of  Appeals. 

ART.  I.      LEAVE  TO  APPEAL. 
(A)  TO  COURT  OF  APPEALS. 

§  2613.     Judgments  or  orders  as  to  which  leave  to  appeal  is 
necessary. 

Appeals  may  be  taken  to  the  court  of  appeals  only  by  leave 
of  court  in  the  following  instances: 

1.  "Where  the  subject  of  the  appeal  is  an  interlocutory  judg- 
ment or  an  order  in  an  action  other  than  an  order  granting  a 
new  trial  on  exceptions  (Code  Civ.  Proc.  §  190,  subd.  2). 

2.  Where  the  appeal  is  from  a  final  judgment  or  a  final 
order  in  an  action  or  proceeding  originally  commenced  in  any 
court  other  than  the  supreme  court,  court  of  claims,  county 
court,  or  a  surrogate's  court  (Code  Civ.  Proc.  §  191,  subd.  1). 

3.  Where  the  appeal  is  from  a  unanimous  affirmance  of  the 
appellate  division,  in  certain  specified  actions  (Code  Civ.  Proc. 
§  191,  subd.  2). 

This  question  as  to  when  an  appeal  can  be  taken  to  the  court 
of  appeals  only  by  leave  has  been  fully  treated  of  in  a  preced- 
ing chapter,1  and  the  only  question  to  be  considered  in  this 
connection  is  as  to  the  procedure  to  obtain  the  leave,  the  pro- 
priety of  granting  leave,  and  the  order  granting  such  leave. 

§  2614.     To  whom  application  to  be  made. 

The  motion  can  be  allowed  only  by  the  appellate  division,  or, 
in  certain  instances,  by  a  judge  of  the  court  of  appeals.2  The 
appellate  division  to  which  the  application  is  made  need  not 
be  composed  of  the  same  judges  who  constituted  the  appellate 
division  which  decided  the  case.3 

§  2615.     Time  for  motion. 

A  late  case  lays  down  the  rule  that  in  all  cases  where  leave 
to  appeal  to  the  court  of  appeals  is  necessary,  the  application 

i  See  ante,  §§  2540-2543. 

2  Code  Civ.  Proc.  §§  190,  191. 

3  Third  Ave.  R.  Co.  v.  Ebling,  100  N.  Y.  98. 


§  2616  TAKING  THE  APPEAL.  3701 

Art.  I.     Leave  to  Appeal. — A.  To  Court  of  Appeals. 

therefor  must  be  made  at  the  term  at  which  the  order  or  judg- 
ment appealed  from  was  granted,  or  the  next  succeeding 
term.4  The  Code  so  expressly  provides  where  leave  is  neces- 
sary because  the  action  or  proceeding  was  commenced  in  an 
inferior  court.5  After  such  time,  the  court  has  no  power  to 
grant  the  application,  since  it  would,  in  effect,  extend  the  time 
to  appeal  which  is  expressly  forbidden  by  the  Code.0 

If  leave  is  sought  to  appeal  from  a  unanimous  affirmance 
of  a  final  judgment  otherwise  appealable  as  of  right  (Code  Civ. 
Proc.  §  191,  subd.  2),  the  party  desiring  to  appeal  must  apply 
at  the  same  term  or  at  the  term  of  said  appellate  division  next 
succeeding  that  at  which  judgment  of  affirmance  was  rendered 
and  notice  of  entry  thereof  served  on  the  party  aggrieved,  and 
in  case  said  appellate  division  refuses  such  application,  then 
such  party  shall  have  thirty  days,  from  and  after  service  of  a 
copy  of  the  order  of  said  appellate  division  denying  such  ap- 
plication, with  notice  of  entry,  in  which  to  apply  to  a  judge  of 
the  court  of  appeals,  to  be  allowed  to  so  appeal.7 

§  2616.    Motion  papers. 

Leave  to  appeal  to  the  court  of  appeals  will  not  be  granted 
unless  ground  is  shown.8  The  usual  practice  is  to  present  an 
affidavit  showing  the  condition  of  the  cause,  the  judgment  en- 
tered pursuant  to  the  order  of  the  appellate  division,  and  stat- 
ing the  reason  why  an  appeal  should  be  allowed  to  the  court 
of  appeals. 

Notice  of  motion.  Notice  should  be  given  of  the  appli- 
cation, and  it  has  been  held  that  the  questions  of  law  which  the 
moving  party  desires  to  have  reviewed  by  the  court  of  appeals 
must  be  definitely  and  concisely  stated  in  the  notice  of  mo- 
tion.9    It  is  submitted,  however,  that  inasmuch  as  the  order, 

4  Porter  v.  International  Bridge  Co.,  163  N.  Y.  79,  85. 

s  Code  Civ.  Proc.  §  191,  subd.  1. 

e  De  Freest  v.  City  of  Troy,  34  Hun,  580. 

7  Code  Civ.  Proc.  §  1310,  as  amended  in  1898. 

sChatterton  v.  Chatterton,  34  App.  Div.  245,  54  N.  Y.  Supp.  515; 
Cromwell  v.  Clement,  89  Hun,  603,  34  N.  Y.  Supp.  998. 

0  Harroun  v.  Brush  Electric  Light  Co.,  14  App.  Div.  19,  43  N.  Y. 
Supp.  1155.       If  this  is  not  done,  the  motion  will  be  denied.     Id. 


3702  TAKING  THE  APPEAL.  §  2616 

Art.  I.     Leave  to  Appeal. — A.  To  Court  of  Appeals. 

when  granted  pursuant  to  section  191  of  the  Code,  need  not 
specify  any  particular  questions  for  review,  and  the  review 
by  the  court  of  appeals  cannot  be  limited  by  certifying  partic- 
ular questions,  this  decision  should  not  apply  where  the  leave 
to  appeal  is  necessitated  by  section  191  rather  than  by  section 
190  of  the  Code. 

Form  of  notice  of  motion  for  leave  to  appeal,  under  section  191 

of  Code. 

[Title  of  cause.] 

Please  take  notice  that  on  the  affidavit  of ,  verified  the 

day  of ,  190 — ,  the  opinion  and  decision  of  the  appellate  division 

of  the  supreme  court,  department  herein,  the  printed  record 

on  appeal,  and  all  papers,  pleadings  and  proceedings  herein,  the  un- 
dersigned will  move  the  appellate  division  of  the  supreme  court, 

department,  at  the  appellate  division  court  room,  in  the  city  of , 

county  of  ,  on  the  day  of  ,  190 — ,  at  the  opening 

of  the  court  on  that  day,  or  as  soon  thereafter  as  counsel  can  be  heard, 
for  the  certificate  of  said  appellate  division,  as  provided  by  subdivision 
one  [or  "two"]  of  section  191  of  the  Code  of  Civil  Procedure,  that  in 
its  opinion  a  question  of  law  is  involved  herein  which  ought  to  be 
reviewed  by  the  court  of  appeals,  and  for  permission  to  the  appellants 
herein  to  appeal  to  said  court  of  appeals  as  in  and  by  said  section  pro- 
vided, and  for  such  other  and  further  relief  as  may  be  just. 

[Date.]     [Signature  and  office  address  of  attorneys  for  appellants.] 

[Address  to  attorneys  for  respondents.] 

Form  of  notice  of  application  to  judge  of  court  of  appeals. 

[Title  of  cause.] 
Please  take  notice  that  on  the  printed  record  on  appeal,  the  decision 

and  opinion  of  the  appellate  division,  department,  in  the  above 

case,  the  notice  of  motion  for  a  certificate  of  the  above-named  ap- 
pellate division,  the  order  of  said  appellate  division  denying  the  mo- 
tion for  leave  to  go  to  the  court  of  appeals,  and  the  order  and 
judgment  of  [affirmance]  of  the  said  appellate  division  in  the  above- 
entitled  action,  and  on  all  the  proceedings  and  papers  herein,  an  ap- 
plication will  be  made  to  Hon.  ,  one  of  the  judges  of  the  court 

of  appeals,  at  the  chambers  of  said  court  at  the  city  of  Albany,  on 

the  day  of ,  190 — ,  at  o'clock  of  that  day,  for  an 

order  or  certificate  allowing  an  appeal  to  the  court  of  appeals  by 
from   said   order   and   judgment   of    [affirmance],    pursuant   to 


S  2618  TAKING  THE  APPEAL.  3703 

Art.  I.     Leave  to  Appeal. — A.  To  Court  of  Appeals. 

subdivision  2  of  section  191  of  the  Code  of  Civil  Procedure,  and  for 
such  other  relief  as  may  be  just  and  proper. 

[Date.]  [Signature   and   office   address   of   attorneys.] 

[Address.] 

§  2617.    Stay  of  proceedings  pending  application  for  leave 

A  party  aggrieved  who  intends  to  apply  for  leave  to  appeal 
to  the  court  of  appeals  may,  on  proof  by  affidavit,  obtain  an 
order  staying  all  proceedings  to  enforce  the  judgment,  until 
the  granting  or  refusal  of  such  leave,  in  a  case  where  leave  to 
appeal  is  necessary  because  of  a  unanimous  affirmance  by 
the  appellate  division  (Code  Civ.  Proc.  §  191,  subd.  2).10 

§  2618.    When  leave  to  appeal  should  be  granted. 

The  propriety  of  allowing  an  appeal  to  the  court  of  appeals 
has  been  but  little  discussed  by  the  court  of  appeals  or  the  ap- 
pellate division.  There  are,  however,  many  decisions  of  the 
court  of  common  pleas,  now  abolished,  as  to  when  leave  to  ap- 
peal should  be  granted  and  when  refused.  In  a  recent  case, 
where  a  final  judgment  was  not  appealable  as  of  right  because 
of  a  unanimous  affirmance  by  the  appellate  division,  the  court 
of  appeals  held  that  an  appeal  should  be  allowed  only  where 
(1)  there  is  reason  to  believe  that  some  material  error  is  dis- 
closed by  the  record  "and"  (2)  where  such  error  is  of  suffici- 
ent importance  to  require  the  general  principle  of  finality  ap- 
pertaining to  the  decisions  of  the  appellate  division  to  be  disre- 
garded in  the  particular  case  by  the  allowance  of  another  ap- 
peal.11 It  was  also  held  that  the  mere  existence  of  errors  pre- 
judicial only  to  the  particular  parties  does  not  of  itself  war- 
rant the  allowance  of  an  appeal,  if  the  questions  have  no  public 
aspect.12  And  it  was  said  that  it  would  seem  that  leave  should 
be  granted  where  there  is  a  conflict  of  decisions  between  dif- 
ferent appellate  divisions,13  or  where  the  supposed  error  re- 

io  Code  Civ.  Proc.  1310.     See  post,  §  2C54. 

ii,  12  Sciolina  v.  Erie  Preserving  Co.,  151  N.  Y.  50,  53. 

is  Sciolina  v.  Erie  Preserving  Co.,  151  N.  Y.  50,  53,  54.  See  Clapp 
v.  Graves,  2  Hilt.  243,  where  appeal  was  allowed  because  decision  of 
common  pleas  was  in  conflict  with  decision  of  supreme  court. 


3704  TAKING  THE  APPEAL.  §2618 

Art.  I.     Leave  to  Appeal. — A.  To  Court  of  Appeals. 

lates  to  a  principle  of  law  or  a  question  of  evidence,  which, 
if  permitted  to  pass  uncorrected,  will  be  likely  to  introduce 
confusion  into  the  body  of  the  law  from  the  frequent  recur- 
rence of  occasions  where  the  same  questions  will  come  up.14 

Earlier  cases,  decided  by  the  common  pleas  and  superior  city 
courts,  laid  down  the  following  rule  as  to  when  an  appeal 
should  be  allowed : 1D  If  there  is  fair  and  reasonable  ground  to 
doubt  the  correctness  of  the  decision,16  leave  should  be  granted 
where  (1)  the  construction  of  public  statutes  is  involved;17 
or  (2)  the  questions  of  law  are  of  public  importance  or  affect 
large  public  interests;  or  (3)  the  principles  involved  are  of 
importance  to  others  than  the  parties  litigant; 18  or  (4)  a  large 
number  of  cases  are  depending  on  the  determination  of  one 
case.19  An  appeal  to  the  court  of  appeals  may  be  allowed 
where  the  question  presented  is  novel  and  of  first  impression.20 

Leave  will  not  be  granted  because  the  decision  will  compel  a 
party  to  pay  costs  in  numerous  other  actions  which  he  has 
brought,21  nor  because  the  court  of  appeals  has  not  yet  passed 
on  the  precise  point  involved,22  nor  to  enable  counsel  to  at- 
tempt to  obtain  a  modification  of  a  pertinent  decision  of  the 
court  of  appeals  which  has  been  followed  for  many  years.23 

i*  Id. 

15  Butterfield  v.  Radde,  38  Super.  Ct.  (6  J.  &  S.)  44;  Atlantic  &  Pa- 
cific Tel.  Co.  v.  Barnes,  39  Super.  Ct.  (7  J.  &  S.)  357;  Spofford  v. 
Rowan,  14  Daly,  236.     These  cases  seem  to  state  the  existing  rule. 

ig  Fire  Dept.  v.  Wendell,  13  Daly,  427.  Where  law  is  well  settled  no 
appeal  will  be  allowed.     Deutsch  v.  Reilly,  19  Alb.  Law  J.  162. 

i"  Leave  will  not  be  granted  where  the  court  is  not  in  doubt  as  to  its 
proper  construction  or  the  correctness  of  the  decision.  Fire  Dept. 
V.  Wendell,  13  Daly,  427. 

is  Butterfield  v.  Radde,  38  Super.  Ct.  (6  J.  &  S.)  44;  Wallace  v.  Din- 
niny,  12  Misc.  635,  32  N.  Y.  Supp.  1150. 

is  See  Barwick  v.  Youmans,  14  Misc.  643,  35  N.  Y.  Supp.  1103;  Brand 
v.  Godwin,  15  Daly,  469,  8  N.  Y.  Supp.  339,  9  N.  Y.  Supp.  743.  Leave 
should  be  granted  where  there  are  numerous  other  claims  against  the 
defendant  involving  the  same  questions.  Fischer  v.  Hope  Mut.  Life 
Ins.  Co.,  40  Super.  Ct.  (18  J.  &  S.)  550. 

20  Mundt  v.  Glockner,  26  App.  Div.  123,  50  N.  Y.  Supp.  190. 

2i  Myers  v.  Rosenback,  14  Misc.  638,  36  N.  Y.  Supp.  7. 

22  Hamburger  v.  Rodman,  9  Daly,  93. 

23  Ward  v.  Edesheimer,  45  State  Rep.  283,  18  N.  Y.  Supp.  139. 


g  2619  TAKING  THE  APPEAL.  37Q5 

Art.  I.     Leave  to  Appeal. — A.   To  Court  of  Appeals. 

Leave  to  appeal  should  be  denied  where  no  novel  question  of 
law  is  involved ; 2i  where  the  question  of  law  involved  has  been 
passed  on  by  the  court  of  appeals ; 25  where  the  decision  does 
not  affect  interests  other  than  those  of  the  parties  to  the 
action; 26  where  it  was  not  necessary  to  decide  the  question  of 
law  as  to  which  there  is  doubt; 27  where  the  question  to  be  de- 
cided is  one  of  practice  and  an  appeal  in  another  cause  is  pend- 
ing to  determine  the  point ; 2S  or  where  the  case  involves  a 
trifling  amount  and  the  objection  is  a  technical  one.29  Leave 
to  appeal  should  be  granted  only  in  a  ease  both  of  great  im- 
portance and  of  doubt.  Where  the  only  question  is  one  of 
pleading,  which  does  not  go  to  the  merits  of  the  action,  leave 
should  not  be  granted.30  So  where  the  affirmance  of  the  ap- 
pellate division  depends  in  part  on  its  disposition  of  a  question 
"of  fact,"  leave  will  not  be  granted.31 

The  fact  that  an  appeal  is  dismissed  because  the  judgment 
appealed  from  is  not  appealable  except  by  leave  of  court  and 
the  court  of  appeals  refuses  leave  to  apply  to  the  court  below 
to  allow  the  appeal  does  not  preclude  the  granting  of  leave  by 
the  appellate  division  after  such  dismissal  and  a  second  ap- 
peal.32 

§  2619.     Order. 

If  the  application  is  made  under  subdivision  2  of  section  190 
of  the  Code  and  leave  to  appeal  is  granted,  specific  questions 
of  law  must  be  certified  for  review ; 32a  but  if  the  application  is 

24  Fulton  v.  Metropolitan  Life  Ins.  Co.,  2  Misc.  55,  20  N.  Y.  Supp.  989; 
Wallace  v.  Dinniny,,  12  Misc.  635,  32  N.  Y.  Supp.  1150;  Claflin  v.  Flack, 
37  State  Rep.  509,  13  N.  Y.  Supp.  916. 

zs  White  v.  Balta,  7  Misc.  662,  28  N.  Y.  Supp.  3. 

26  Wallace  v.  Dinniny,  12  Misc.  635,  32  N.  Y.  Supp.  1150. 

2T  Josuez  v.  Murphy,  6  Daly,  404. 

28  Palmer  v.  Moeller,  2  Hilt.  421. 

29  Ahem  v.  National  S.  S.  Co.,  11  Abb.  Pr.  (N.  S.)  356;  Lynch  v. 
Sauer,  16  Misc.  362,  38  N.  Y.  Supp.  1. 

soRoeber  v.  New  Yorker  Staats  Zeitung,  2  App.  Div.  163,  37  N.  Y. 
Supp.  J19. 

3i  Village  of  Bronxville  v.  New  York,  W.  &  C.  Traction  Co.,  46  App. 
Div.  627,  61  N.  Y.  719. 

3:iGood  v.  Daland,  119  N.  Y.  153. 

32a  Form  and  contents  of  questions  certified,  see  ante,  §  2541. 


37HO  TAKING  THE  APPEAL.  §  2619 

Art.  I.     Leave  to  Appeal. — A.  To  Court  of  Appeals. 

made  under  section  191  of  the  Code,  it  is  sufficient  to  merely 
certify  that ' '  questions  of  law  are  involved  in  this  action  which 
should  be  reviewed  by  the  court  of  appeals."  33  The  scope  of 
the  review  by  the  court  of  appeals,  in  the  latter  instance,  can- 
not be  limited  to  questions  certified. 

The  appellate  division  has  no  power  to  allow  an  appeal, 
given  as  a  matter  of  right  under  certain  conditions,  by  dispens- 
ing with  the  conditions.  For  instance,  the  appellate  division 
cannot  allow  an  appeal  to  the  court  of  appeals  from  an  order 
granting  a  new  trial  on  exceptions,  except  on  the  condition  that 
the  appellant  gives  a  stipulation  for  judgment  absolute.34 

Form  of  order  granted  under  section  191  of  Code. 

[Title  of  cause.]  At  a  term  of  the  appellate  division,  etc. 

The  [defendants]  A.  X.,  B.  S.,  and  C.  R.,  in  the  above-entitled 
action,  having  moved  this  court  for  leave  to  appeal  to  the  court  of  ap- 
peals from  the  judgment  of   [affirmance]   in  this  action,  pursuant  to 

,  on  the day  of ,  190 — ,  and  the  same  coming  on  to 

be  heard  before  this  appellate  division,  at  the  term  thereof, 

for  the  year  190 — ,  at  the  rooms  of  said  court  in  the  city  of  , 

county  of ,  on  the day  of ,  190 — ,  and  after  hearing 

,  of  counsel  for  the  appellants,  in  support  of  said  motion,  and 

of  counsel  for  the  respondent  in  opposition,  and  on  reading 

and  filing  the  notice  of  motion  and  affidavit  of ,  and  the  affidavit 

of  in  opposition,  now,  on  motion  of ,  attorneys  for  the 

respondents, 

Ordered  that  the  said  motion  for  leave  to  appeal  to  the  court  of  ap- 
peals be  and  the  same  hereby  is  granted,  on  payment  of  dol- 
lars costs,  and  it  is  further  ordered  and  this  court  hereby  certifies 
that  in  its  opinion  a  question  of  law  is  involved  herein  that  ought  to 
be  reviewed  by  the  court  of  appeals. 

Form  of  order  granted  under  section  190  of  Code. 

[Title,  etc.,  as  in  preceding  form.] 

[Same  as  in  preceding  form  down  to  ordering  clause,  and  add:] 
Ordered,  that  the  said  motion  for  the  allowance  of  an  appeal  to  the 

33  Young  v.  Fox,  155  N.  Y.  615;   Commercial  Bank  v.  Sherwood,  162 
N.  Y.  310;  Kurz  v.  Doerr,  180  N.  Y.  88,  92. 
84  Mundt  v.  Glokner,  160  N.  Y.  571,  576. 


ft  2620  TAKING  THE  APPEAL.  3707 

Art.  I.     Leave  to  Appeal. — A.   To  Court  of  Appeals. 

court   of   appeals,   be   and   hereby   is,  granted,   on   payment   of 

dollars  as  costs,  and  the  following  questions  certified: 

1.  Whether,  on  the  facts  shown  by  the  record  herein,     *     *     *     . 

2.  Whether,     *     *     *     . 

Enter. 


P.  J. 


Allowance  nunc  pro  tunc.  Where  an  appeal  is  at- 
tempted to  be  taken  without  leave  of  court,  in  a  ease  in  which 
leave  is  necessary,  a  subsequent  order  allowing  an  appeal  can- 
not be  made  to  take  effect  nunc  pro  tunc,  without  the  service 
of  a  new  notice  of  appeal.35 

§  2620.     Effect  of  leave  to  appeal. 

The  allowance  of  an  appeal  to  the  court  of  appeals  does  not, 
in  any  way,  change  or  add  to  the  authority  of  the  court  of  ap- 
peals, or  affect  the  manner  of  determining  the  questions  in- 
volved.36 The  permission  to  appeal  in  no  way  enlarges  the 
jurisdiction  of  the  court  with  respect  to  the  questions  that  may 
be  reviewed  by  it  on  a  hearing  of  the  appeal.  For  instance  it 
does  not  bring  up  for  review  a  question  as  to  the  existence 
and  the  sufficiency  of  the  evidence  where  there  has  been  a 
unanimous  affirmance  by  the  appellate  division.  So  the  leave 
does  not  authorize  a  review  of  discretionary  matters.37  The 
allowing  an  appeal  does  not  (1)  broaden  the  scope  of  re- 
view of  the  court  of  appeals  as  fixed  by  the  Constitution,38  nor 
(2)  authorize  the  dispensing  with  a  stipulation  for  judgment 
absolute  where  the  appeal  is  from  an  order  granting  a  new 
trial  on  exceptions.39 

35  Guarantee  Trust  &  Safe  Deposit  Co.  v.  Philadelphia,  R.  &  N.  E.  R. 
Co.,  160  N.  Y.  1,  7. 

seCaponigri  v.  Altieri,  164  N.  Y.  476,  which  held  that  determination 
of  appellate  division  on  the  facts  could  not  be  reviewed. 

37  Lewin  v.  Lehigh  Valley  R.  Co.,  169  N.  Y.  336. 

38  Court  of  appeals  can  review  only  questions  of  law  even  though 
leave  to  appeal  is  granted.     Reed  v.  McCord,  160  N.  Y.  330. 

3»  Mundt  v.  Glokner,  160  N.  Y.  571. 


3708  TAKING  THE  APPEAL.  §  2624 


Art.   I.     Leave  to  Appeal. — B.   To  Appellate  Division. 


(B)   TO  APPELLATE  DIVISION. 

§  2621.     Code  provision. 

Section  1344  of  the  Code  provides  that  where  appeals  from 
the  judgment  of  any  municipal  court  in  either  of  the  boroughs 
of  Manhattan  or  the  Bronx  in  the  city  of  New  York  or 
from  a  judgment  or  order  of  the  city  court  of  New  York,  are 
heard  by  the  justices  composing  the  appellate  term,  the  justice 
or  justices  by  whom  such  appeal  was  determined  [or  a  justice  of 
the  appellate  division  in  the  first  judicial  department]  may 
allow  an  appeal  to  be  taken  to  the  appellate  division  from  such 
determiuation.  The  matter  in  brackets  was  added  by  amend- 
ment in  1904. 

§  2622.     To  whom  application  to  be  made. 

Prior  to  the  1904  amendment  of  section  1344  of  the  Code,  it 
was  held  that  the  justices  who  heard  the  appeal,  as  such  jus- 
tices, and  no  one  else,  could  allow  an  appeal,40  but  now  it  is 
expressly  provided  that  the  appeal  may  be  allowed  by  the  jus- 
tice or  justices  by  whom  the  first  appeal  was  determined  or  by 
"a  justice  of  the  appellate  division  in  the  first  judicial  depart- 
ment." 

§  2623.     Time  for  motion. 

Th,e  application  for  leave  to  appeal  to  the  appellate  division 
must  be  made  on  the  first  day  of  the  term  following  the  term  in 
which  the  case  was  decided.41 

§  2624.    Motion  papers. 

The  application  for  leave  to  appeal  to  the  appellate  division 
must  be  made  in  writing,  on  notice  to  the  adverse  party;  and 

40  Jaeger  v.  Koenig,  67  App.  Div.  552,  73  N.  Y.  Supp.  907;  Harrison 
v.  Weir,  68  App.  Div.  25,  73  N.  Y.  Supp.  1119.  Compare  Curtin  v.  Met- 
ropolitan St.  R.  Co.,  22  Misc.  586,  27  Civ.  Proc.  R.  (Kerr)  97,  49  N. 
Y.  Supp.  668. 

4i  Rule  7  of  appellate  division,  first  department,  of  rules  relating  to 
hearing  of  appeals  from  the  city  court  of  the  city  of  New  York  and  the 
district  courts  therein. 


g  2G27  TAKING  THE  APPEAL.  3709 

Art.  I.     Leave  to  Appeal. — C.  Second  or  Further  Appeals. 

such  application  must  set  forth  in  full  the  special  reasons  why- 
such  an  appeal  should  be  allowed,  and  must  be  submitted  with- 
out oral  argument.42 

§  2625.    When  leave  to  appeal  should  be  granted. 

The  rules  laid  down  by  the  old  court  of  common  pleas  on 
motions  for  leave  to  appeal  to  the  court  of  appeals,  in  actions 
commenced  in  the  city  and  district  courts,  as  to  the  propriety  of 
granting  leave,  seem  to  apply  equally  well  to  applications  to 
the  appellate  term  for  leave  to  appeal.43  And  it  would  seem 
that  the  rules  already  laid  down  as  to  when  leave  to  appeal  to 
the  court  of  appeals  should  be  granted,  and  when  refused,  also 
apply  to  the  propriety  of  granting  leave  to  apply  to  the  appel- 
late division. 

The  granting  of  leave  is  discretionary.44 

§  2626.    Order. 

The  order  granting  leave  to  appeal  cannot  restrict  the  scope 
of  review  by  the  appellate  division  by  certifying  special  ques- 
tions for  determination.45  It  is  improper  to  certify  special 
questions. 

(C)   SECOND  OR  FURTHER  APPEALS. 

§  2627.     General  rule. 

It  has  already  been  stated  in  a  preceding  chapter 46  that 
"leave  to  appeal  is  usually  necessary  where  a  second  appeal  is 
taken  to  the  same  court  from  the  same  judgment  or  order, 
after  a  dismissal  of  a  previous  appeal."  Where,  however,  the 
first  appeal  is  dismissed  as  a  nullity,  a  second  appeal  may  be 
taken  without  leave.47 

42  id. 

« Lynch   v.   Sauer,   16   Misc.   362,   38  N.  Y.   Supp.   1. 
4*Lesster  v.  Lawyers'  Surety  Co.,  50  App.  Div.  181,  185,  63  N.  Y. 
Supp.  804. 

45  O'Rourke  v.  Feist,  42  App.  Div.  136,  59  N.  Y.  Supp.  157;  Bang  v. 
McAvoy,  52  App.  Div.  501,  65  N.  Y.  Supp.  467. 

46  See  ante,  §  2528. 

47  Keller  v.  Cleary,  62  App.  Div.  609,  70  N.  Y.  Supp.  899. 


371u  TAKING  THE  APPEAL.  §2630 

Art.  II.     Notice  of  Appeal. 

ART.    II.      NOTICE    OF    APPEAL. 

§  2628.     Necessity. 

An  appeal  must  be  taken  by  serving  and  filing  a  notice  of 
appeal.4*5  Early  cases  holding  that  the  service  of  a  copy  of  the 
case  and  exceptions  was  equivalent  to  a  formal  notice  of  ap- 
peal,49 especially  where  not  objected  to,50  have  been  criticized,51 
and  it  would  seem  that  they  should  not  be  followed. 

§  2629.     Who  may  give  notice. 

According  to  the  later  authorities,  an  appeal  cannot  be  taken 
by  an  attorney  who  has  not  been  regularly  substituted  in  place 
of  the  attorney  who  appeared  in  the  action,52  except  that  an  ap- 
peal may  be  taken  to  the  court  of  appeals  without  a  substitu- 
tion, under  rule  three  of  the  court  of  appeals.53 

§  2630.     Form  and  contents. 

The  notice  must  be  in  writing  and  "to  the  effect  that  the  ap- 
pellant appeals  from  the  judgment  or  order,  or  from  a  specified 
part  thereof."  54  The  notice  should  state  who  appeals  and  the 
court  to  which  the  appeal  is  taken,  and  designate  the  judgment 
or  order  appealed  from  in  such  a  way  that  the  adverse  parties 
will  not  be  misled.  But  an  incorrect  or  informal  designation 
of  the  appellate  court  is  not  a  fatal  error  where  the  parties 
served  with  the  notice  could  not  have  been  misled,55  and  the 

4s  Code  Civ.  Proc.  §  1300. 

49  Sherman  v.  Wells,  14  How.  Pr.  522;  Jackson  v.  Fassitt,  12  Abb. 
Pr.  281,  33  Barb.  645,  21  How.  Pr.  279. 

so  Sherman  v.  Wells,  14  How.  Pr.  522;  Jackson  v.  Fassitt,  12  Abb. 
Pr.  281,  33  Barb.  645,  21  How.  Pr.  279. 

si  Sails  v.  Butler,  27  How.  Pr.  133. 

52  Pensa  v.  Pensa,  3  Misc.  417,  23  N.  Y.  Supp.  186,  and  cases  cited; 
Shuler  v.  Maxwell,  38  Hun,  240.  Contra,  Webb  v.  Milne,  10  Civ.  Proc. 
R.  (Browne)  27;  Pratt  v.  Allen,  19  How.  Pr.  450. 

53  Magnolia  Metal  Co.  v.  Sterlingworth  Railway  Supply  Co.,  37  App. 
Div.   366,   56  N.   Y.   Supp.   16. 

s*  Code  Civ.  Proc.  §  1300. 

55  Appeal  to  "supreme  court."     People  ex  rel.  Boylston  v.  Tarbell, 


2630  TAKING  THE  APPEAL.  3711 


Art.  II.     Notice  of  Appeal. 


entire  omission  to  name  the  appellate  court  may  be  waived.56 
An  appeal  from  an  order  denying  a  motion  to  revive  an  action 
in  favor  of  the  representatives  of  a  party  who  has  died  after 
issue  joined  may  be  entitled  in  the  name  of  such  representa- 
tives.57 An  erroneous  title  may  be  amended.58  It  is  not  neces- 
sary to  state  the  grounds  of  appeal.59 

A  notice,  in  terms,  from  the  "actual  determination"  of  the 
general  term  of  the  New  York  City  court,  where  the  printed 
case  contained  the  order  of  affirmance  but  not  the  judgment  of 
affirmance,  was  held  to  operate  only  as  an  appeal  from  the 
order,  and  to  confer  no  authority  on  the  appellate  court  to 
review  the  proceedings.60 
Form  of  notice  of  appeal  from  final  judgment. 

[Title  of  cause.] 

Please  take  notice  that  ,  the  in  this  action,  appeals  to 

the  appellate  division  of  the  supreme  court,  from  the  final  judgment 

of  the  supreme  court  in  favor  of against ,  entered  in  the 

office  of  the  clerk  of county,  on  the  day  of 190 — , 

[and  that  the  appellant  intends  to  bring  up  for  review  on  such  appeal 

entered  in  this  action  in  the  office  of  the  clerk  of county 

on  the day  of ,  190—]. 

[Date.]       [Signature  and  office  address  of  attorney  for  appellant.] 
[Address  to  opposing  attorney  and  to  clerk  of  county  where  order 
or  judgment  is  entered.] 

Form  of  notice  of  appeal  from  a  judge's  order. 

[Title  of  cause.] 
Please  take  notice  that ,  the  herein,  appeals  to  the  ap- 

17  How.  Pr.  120.  The  notice  may  be  corrected  by  the  appellate  term, 
on  motion,  where  notice  is  of  appeal  to  appellate  "division"  instead 
of  "term."     Clapp  v.  Sternglanz,  23  Misc.  641,  52  N.  Y.  Supp.  156. 

58  Matter  of  Gates,  26  Hun,  179;  Silsbee  v.  Gillespie,  9  Abb.  Pr.  (N. 
S.)  139. 

57  McLachlin  v.  Brett,  27  Hun,  18. 

ss  McLachlin  v.  Brett,  27  Hun,  18;  Ten  Eick  v.  Simpson,  11  Paige, 
177. 

so  Wilson  v.  Allen,  3  How.  Pr.  369.  Rule  was  to  the  contrary  on  an 
appeal  from  the  marine  court  to  the  common  pleas.  Irwin  v.  Muir,  4 
Abb.  Pr.  133,  13  How.  Pr.  409. 

eo  Whitfield  v.  Broadway  &  S.  A.  R.  Co.,  25  Abb.  N.  C.  59,  31  State 
Rep.  285,  19  Civ.  Proc.  R.  (Browne)  105,  10  N.  Y.  Supp.  106. 


3712  TAKING  THE  APPEAL.  §  2630 

Art.  II.     Notice  of  Appeal. 

pellate  division   of   the   supreme   court,   department,   from   the 

order  made  in  this  action  on  the  day  of  ,  190 — ,  by  Hon. 

,  justice  of  the  supreme  court,  and  entered  in  the  office  of  the 

clerk  of county,  on  the day  of ,  190 — ,  granting  [or 

"denying"]  the  motion  of ,  the ,  for . 

[Subscription,  date,  and  address  as  in  preceding  form.] 

Reference  to  judgment  or  order  appealed  from.     The 


judgment  or  order  appealed  from  must  be  so  designated  that 
the  adverse  parties  served  with  the  notice  cannot  be  misled  as 
to  what  has  been  appealed.  It  is  customary  to  specify  the 
clerk's  office  in  which  the  judgment  or  order  is  entered,  but 
failure  to  do  so  is  not  a  jurisdictional  defect.61 

If  the  appeal  is  from  a  judgment  it  is  usual  to  designate  it 
as  final  or  interlocutory  and  to  state  in  what  court  it  was  ren- 
dered and  in  what  clerk's  office  filed.  A  notice  of  appeal  from 
the  appellate  division  is  not  defective  merely  because  the  judg- 
ment of  affirmance  is  referred  to  as  for  a  certain  amount,  which 
represents  the  costs  only,  where  the  notice  clearly  shows  that 
the  judgment  appealed  from  is  the  judgment  of  affirmance.62 

If  the  appeal  is  from  an  order,  the  notice  must  designate  the 
particular  order  appealed  from  and  state  its  character.63  A 
shot-gun  notice  of  appeal  from  an  order  and  from  "all  pro- 
ceedings had  or  taken  herein,  and  each  and  every  part  of  said 
order  and  proceedings"  does  not  enlarge  the  scope  of  review.64 
If  the  meaning  is  apparent,  it  is  immaterial  that  the  notice,  by 
mistake,  speaks  of  a  judgment,  though  none  has  been  entered.65 
A  defect  in  a  notice  of  appeal  from  an  order  which  sufficiently 
apprises  the  respondent  of  the  order  appealed  from  in  that  the 
notice  states  that  the  appeal  is  from  an  order  entered  very 
briefly  on  an  earlier  date  instead  of  from  such  order  entered 
thereafter  at  length,  may  be  disregarded.66    A  notice  of  appeal 

ci  Silsbee  v.  Gillespie,  9  Abb.  Pr.  (N.  S.)  139. 

02  Engel,  Heller  Co.  v.  Henry  Elias  Brewing  Co.,  37  Misc.  480,  75  N. 
Y.  Supp.  1080. 

63  Francis  v.  Tilyon,  26  App.  Div.  340,  49  N.  Y.  Supp.  799. 

64  Isaacs  v.  Calder,  42  App.  Div.  152,  59  N.  Y.  Supp.  21. 

es  Van  Ingen  v.  Snyder,  24  Hun,  81;  Wulff  v.  Cilento,  28  Misc.  551,. 
59  N.  Y.  Supp.  525. 

«eLindon  v.  Beach,  6  Hun,  200. 


§  2630  TAKING  THE  APPEAL.  3713 


Art.  II.      Notice  of  Appeal. 


from  an  order  ' '  entered  herein  on  the  *  *  *  day  of  *  *  *  ,  as 
resettled  by  the  order  entered  herein  on  the  *  *  *  day  of 
*  *  *,  and  from  each  and  every  part  thereof"  is  sufficient 
to  bring  up  the  whole  order  as  resettled.67  But  a  notice  of  ap- 
peal from  an  order  alleged  to  be  made  and  entered  on  a  certain 
day,  where  no  such  order  was  of  record  on  the  date  specified, 
is  ineffectual  to  authorize  a  review  of  such  order.68  A  notice 
of  appeal  from  an  order  "of  the  special  term  of  this  court"  is 
not  fatally  defective  though  the  appeal  is  really  from  a  judge's 
order.60 

If  the  appeal  is  from  only  a  part  of  a  judgment  or  order, 
the  part  appealed  from  should  be  so  clearly  referred  to  that 
there  can  be  no  mistake.  The  correctness  of  a  portion  of  a 
judgment  or  order  expressly  excepted  from  the  notice  of  ap- 
peal is  not  reviewable.70 

Stipulation   for  judgment   absolute.     If   an   appeal   is 

taken  to  the  court  of  appeals  71  or  to  the  appellate  term  from 
the  city  court  of  New  York,72  from  an  order  granting  a  new 
trial  on  a  case  or  exceptions,  the  notice  of  appeal  must  con- 
tain a  stipulation  for  judgment  absolute  in  case  the  order  is 
affirmed.73 

Form  of  notice  of  appeal  to  court  of  appeals  with  stipulation  for 

judgment   absolute. 

[Title  of  the  cause.] 

Please  take  notice  that  ,  the  ,  appeals  to  the  court  of 

appeals  from  the  order  of  the  appellate  division  of  the  supreme  court, 

department,  made  in  this  action,  and  entered  in  the  office  of 

the  clerk  of  said  appellate  division  on  the  day  of  ,  190 — , 

and  entered  in  the  office  of  the  clerk  of  county  on  the  

day  of ,  190 — ,  granting  a  new  trial  herein;  and  the  said  

hereby  assents  that  if  the  said  order  be  affirmed  on  said  appeal  judg- 
ment absolute  shall  be  rendered  against  him. 

[Subscription,  date,  and  address  as  in  preceding  form.] 

ct  Seligsberg  v.  Schepp,  79  App.  Div.  626,  630,  80  N.  Y.  Supp.  154. 

68  .Francis  v.  Tilyon,  26  App.  Div.  340,  49  N.  Y.  Supp.  799. 

ea  O'Connor  v.  McLaughlin,  80  App.  Div.  305,  80  N.  Y.  Supp.  741. 

to  Van  Camp  v.  Fowler,  59  Hun,  311,  13  N.  Y.  Supp.  1. 

7i  See  ante,  §  2539. 

72  Code  Civ.  Proc.  §  3191,  subd.  2. 

73  That  omission  of  stipulation  is  amendable,  see  post,  §  2638. 

N.  Y.  Prac— 233. 


3714  TAKING  THE  APPEAL.  c  2631 

Art.  II.     Notice  of  Appeal. 


§  2631.  Review  of  interlocutory  judgment  or  intermediate 
order  on  appeal  from  final  judgment  or  final  order. 
The  Code  provides  as  follows:  "Where  the  appeal  is  from 
a  final  judgment,  or  from  a  final  order  in  a  special  proceeding, 
and  the  appellant  intends  to  bring  up,  for  review  thereupon,  an 
interlocutory  judgment  or  an  intermediate  order,  he  must,  in 
the  notice  of  appeal,  distinctly  specify  the  interlocutory  judg- 
ment or  intermediate  order  to  be  reviewed. ' ' 74  This  Code  rule 
applies  to  actions  only  when  the  appeal  is  from  a  "final  judg- 
ment, ' ' 75  and  to  special  proceedings  only  when  the  appeal  is 
from  a  "final  order."  7G  Unless  specified  in  the  notice  of  ap- 
peal, an  interlocutory  judgment 77  or  intermediate  order 7S  is 
not  reviewable  on  an  appeal  from  a  final  judgment  or  from  a 
final  order  in  a  special  proceeding.  The  failure  to  state  that 
an  intermediate  order  will  be  brought  up  for  review  deprives 
appellant,  if  defeated  on  the  appeal  from  the  final  judgment, 
of  the  right  to  afterwards  appeal  from  such  order.79  Prior  to 
the  present  Code,  an  interlocutory  judgment  was  reviewable 
on  an  appeal  from  a  final  judgment,  whether  or  not  mentioned 

"4  Code  Civ.  Proc.  §  1301. 

TsArkenburgh  v.  Arkenburgh,  14  App.  Div.  367,  43  N.  Y.  Supp.  892; 
Myres  v.  Myres,  18  State  Rep.  509,  2  N.  Y.  Supp  465 

76  Oneonta,  C.  &  R.  S.  R.  Co.  v.  Cooperstown  &  C.  V.  R.  Co.,  85  App. 
Div.  284,  83  N.  Y.  Supp.  307;  New  York,  L.  &  W.  R.  Co.,  v.  Erie  R.  Co., 
170  N.  Y.  448. 

~'i  If  not  specified,  the  interlocutory  judgment,  as  to  all  points  cov- 
ered thereby,  is  to  be  taken  as  the  settled  law  of  the  case  and  is  not 
open  for  review  on  the  appeal.  Reese  v.  Smyth,  95  N.  Y.  645;  Patter- 
son v.  McCunn,  38  Hun,  531;  Cameron  v.  Equitable  Life  Assur.  Soc, 
45  Super.  Ct.  (13  J.  &  S.)  628.  Section  1350  of  the  Code  precludes  a  re- 
view of  an  interlocutory  judgment  on  an  appeal  from  a  final  judgment, 
in  certain  instances,  unless  the  interlocutory  judgment  is  specified  in 
the  notice  of  appeal.     Rich  v.  Manhattan  R.  Co.,  150  N.  Y.  542. 

78  Stearns  v.  Shepard  &  Morse  Lumber  Co.,  91  App.  Div.  56,  86  N.  Y. 
Supp.  396;  Mcllvaine  v.  Steinson,  90  App.  Div.  77,  85  N.  Y.  Supp.  889. 

Order  denying  motion  to  make  person  a  party.  Snyder  v.  Bliss,  19 
Wkly.  Dig.  304.  Order  increasing  verdict  so  as  to  give  treble  damages. 
Purton  v.  Watson,  19  State  Rep.  6,  2  N.  Y.  Supp.  661.  Order  grant- 
ing or  denying  a  new  trial  on  the  judge's  minutes.  Manhattan  Brass 
Co.  v.  Gilman,  20  Misc.  722,  45  N.  Y.  Supp.  818. 

•  9  Whitman  v.  Foley,  40  State  Rep.  721,  16  N.  Y.  Supp.  23. 


§  263  I  TAKING  THE  APPEAL.  37I5 

Art.  II.     Notice  of  Appeal. 


in  the  notice  of  appeal,80  as  was  an  ' '  intermediate  order  involv- 
ing the  merits  and  necessarily  affecting  the  judgment. ' ' 81 

Such  statement  in  the  notice  of  appeal  is  equivalent  to  a 
direct  notice  of  appeal  from  such  interlocutory  judgment  or 
intermediate  order.82 

If  the  final  judgment  is  the  necessary  result  of  an  intermedi- 
ate order  or  interlocutory  judgment,  it  would  seem  to  be  the 
better  practice  to  appeal  directly  from  such  interlocutory 
judgment  or  intermediate  order; 83  in  such  a  case,  if  the  appeal 
is  from  the  final  judgment,  and  such  interlocutory  judgment 
or  intermediate  order  is  not  specified  in  the  notice  of  appeal, 
the  final  judgment  must  be  affirmed.84 

The  decision  on  which  is  based  an  interlocutory  judgment 
sustaining  or  overruling  a  demurrer  is  not  an  intermediate 
order  which  must  be  specified  in  the  notice  of  appeal,  in  order 
to  be  reviewed,  but  it  is  sufficient,  on  an  appeal  from  the  final 
judgment  to  specify  the  interlocutory  judgment  in  the  notice 
of  appeal.S5 

Where  exceptions  are  ordered  to  be  heard  in  the  first  in- 
stance by  the  appellate  division,  and  they  are  overruled  and 
judgment  ordered,  and  judgment  is  duly  entered,  it  is  not 
necessary  to  appeal  both  from  the  judgment  and  the  order  nor 
to  include  in  the  notice  of  appeal  from  the  judgment  a  state- 
ment that  the  order  of  the  appellate  division  will  be  brought 
up  for  review.86 

so  Ansonia  Brass  &  Copper  Co.  v.  Conner,  13  Wkly.  Dig.  87. 

si  Code  Pro.  §  11,  subd.  1.  Order  substituting  party,  after  deatb  of 
plaintiff,  held  not  such  an  order.     Hackett  v.  Belden,  47  N.  Y.  624. 

ss  Taylor  v.  Smith,  24  App.  Div.  519,  49  N.  Y.  Supp.  41. 

83  James  v.  Shea,  28  Hun,  74.  It  seems  that  if  the  interlocutory  judg- 
ment or  intermediate  order  is  merged  in  the  final  judgment,  it  will  not 
be  reviewed.  Bates  v.  Holbrook,  89  App.  Div.  548,  551,  85  N.  Y.  Supp. 
673. 

si  Oesterreicber  v.  Raisbeck,  51  Super.  Ct.  (19  J.  &  S.)  416.  Mad- 
dock  v.  Van  Kleeck,  49  Super.  Ct.  (17  J.  &  S.)  496.  See,  also,  Town- 
send  v.  City  of  New  York,  35  State  Rep.  465,  30  Civ.  Proc.  R.  (Browne) 
200,  12  N.  Y.  Supp.  461. 

83  Wright  v.  Chapin,  74  Hun,  521,  31  Abb.  N.  C.  137.  See,  also,  Doug- 
las v.  Coonley,  84  Hun,  158,  32  N.  Y.  Supp.  444. 

so  Becker  v.  Kock,  104  N.  Y.  394. 


3716  TAKING  THE  APPEAL.  §  2631 


Art.  II.     Notice  of  Appeal. 


A  notice  of  appeal  from  a  judgment,  which  specifies  for  re- 
view in  order  denying  a  motion  for  a  new  trial,  does  not  bring 
up  for  review  a  subsequent  order  denying  a  new  trial  though 
the  order  denies  the  motion  "with  the  same  force  and  effect  as 
if  a  motion  for  a  new  trial  on  the  same  grounds  had  been  made 
on  the  minutes  at  the  close  of  a  new  trial  and  denied. '  '87 

Amendment  of  notice.  The  omission  to  specify  the  in- 
terlocutory judgment  or  intermediate  order  cannot  be  rem- 
edied by  allowing  an  amendment  in  the  appellate  court,  since 
the  court  cannot  thus  extend  the  statutory  time  within  which 
an  appeal  may  be  taken.88 

Effect  of  expiration  of  time  within  which  to  appeal.    An 

interlocutory  judgment  or  intermediate  order  can  be  reviewed 
by  a  statement  in  the  notice  of  appeal  though  the  time  to  ap- 
peal therefrom  has  expired  at  the  time  the  appeal  is  taken 
from  the  final  judgment.89 

Sufficiency  of  notice  of  intention  to  review.  If  the  no- 
tice distinctly  specifies  the  interlocutory  judgment  or  inter- 
mediate order  sought  to  be  reviewed,  it  is  sufficient.  No  par- 
ticular form  of  language  is  requisite.90 

What  is  an  "intermediate"  order.  A  conflict  of  opin- 
ion in  earlier  cases  as  to  what  constitutes  an  "intermediate" 
order  has  been  set  at  rest  by  the  court  of  appeals  which 
has  held  that  intermediate  orders  are  those  made  after  the 
service  of  summons  and  before  the  entry  of  judgment.91     It 

s"  Fraser  v.  Alpha  Combined  Heating  &  Lighting  Mfg.  Co.,  25  Misc. 
422,  54  N.  Y.  Supp.  1087. 

ss  See  post  §  2638. 

s»  Code  Civ.  Proc.  §  1316.  So  held  where  appeal  was  from  the  final 
order  in  a  special  proceeding.  Moyer  v.  Moyer,  7  App.  Div.  523,  533, 
40  N.  Y.  Supp.  258.  Contra,  Taylor  v.  Smith,  24  App.  Div.  519,  49  N. 
Y.  Supp.  41. 

»o  Pfeffer  v.  Buffalo  Ry.  Co.,  4  Misc.  465,  24  N.  Y.  Supp.  490.  Crouch 
v.  Moll,  28  State  Rep.  48,  8  N.  Y.  Supp.  183.  Stivers  v.  Ritt,  29  Misc(. 
341,  60  N.  Y.  Supp.  507.  Taylor  v.  Smith,  24  App.  Div.  519,  49  N.  Y. 
Supp.  41. 

oi  Fox  v.  Matthiessen,  155  N.  Y.  177,  reversing  84  Hun,  396,  32  N.  Y. 
Supp.  356.  Followed  in  Taylor  v.  Smith,  164  N.  Y.  399,  reversing  24 
App.  Div.  519,  49  N.  Y.  Supp.  41. 

Where,   after   a  referee   made   a   report    dismissing   the   complaint, 


§  2631  TAKING  THE  APPEAL.  3717 


Art.  II.     Notice  of  Appeal. 


follows  that  an  order  denying  a  new  trial,  made  and  entered 
after  the  entry  of  judgment,  is  not  an  "intermediate"  order 
which  may  be  so  reviewed.92  So  an  order  made  after  the 
entry  of  judgment,  appointing  a  referee,  is  not  an  "inter- 
mediate" order.93  But  an  order  denying  a  motion  for  a  new 
trial  made  on  the  judge's  minutes  after  the  trial  by  jury  of 
specific  issues  in  an  equitable  suit  is  an  intermediate  order.94 

What  is  an  order  which  "necessarily  affects  the  final 

judgment."  If  the  appeal  is  from  a  final  judgment,  an  inter- 
locutory judgment  or  intermediate  order  specified  in  the  notice 
of  appeal  is  not  brought  up  for  review  unless  it  "necessarily 
affects  the  final  judgment."  93  The  question  whether  any  par- 
ticular order  necessarily  affects  the  final  judgment  is  an  open 
one  concerning  which  the  holdings  of  the  supreme  court  are  in 
conflict.  It  has  been  said  that  such  orders  are  those  which,  if 
reversed,  would  take  away  the  foundation  of  the  judgment  or 
make  the  trial  or  the  judgment  entered  invalid  or  without  sup- 
port.96 It  has  been  held  that  an  order  denying  a  motion  for  a 
new  trial  necessarily  affects  the  final  judgment,97  as  does  an 
order  denying  a  motion  for  the  settlement  of  issues  in  an  equit- 
able suit,  for  trial  by  a  jury,98  or  an  order  sustaining  a  de- 
murrer to  part  of  a  pleading,99  or  an  order  striking  out  a  good 
defense  from  the  answer,100  or  an  order  permitting  a  receiver 

plaintiff  moved  to  amend,  and  to  recommit  the  report  to  the  referee 
for  further  findings,  orders  denying  such  motions  are  not  intermediate 
orders.  Spencer  v.  Huntington,  100  App.  Div.  463,  91  N.  Y.  Supp.  561. 
An  order  permitting  an  amendment  of  the  complaint,  where  the  trial 
is  suspended  and  the  case  put  over  the  term,  is  not  an  order  made  dur- 
ing the  trial.     Shannon  v.  Pickell,  2  State  Rep.  160. 

w  Hymes  v.  Van  Cleef,  39  State  Rep.  810,  814,  15  N.  Y.  Supp.  341; 
Zeisloft  v.  George  V.  Blackburne  Co.,  45  Misc.  595,  91  N.  Y.  Supp.  8. 

as  Mills  v.  Stewart,  88  Hun,  503,  34  N.  Y.  Supp.  786. 

o*  Anderson  v.  Carter,  24  App.  Div.  462,  49  N.  Y.  Supp.  255. 

96  Code  Civ.  Proc.  §  1316. 

»«  Raff  v.  Koster,  Bial  &  Co.,  38  App.  Div.  336,  56  N.  Y.  Supp.  997. 

97  Fox  v.  Matthiessen,  155  N.  Y.  177.  Contra,  Taylor  v.  Smith,  24 
App.  Div.  519,  527,  49  N.  Y.  Supp.  41. 

98  Herb  v.  Metropolitan  Hospital,  80  App.  Div.  145,  152,  80  N.  Y.  Supp. 
552,  McLaughlin,  J.,  and  Van  Brunt,  P.  J.,  dissent. 

99  Ayres  v.  Western  R.  Co.,  45  N.  Y.  260. 
ioo  Rapalee  v.  Stewart,  27  N.  Y.  310. 


3718  TAKING  THE  APPEAL.  §2632 


Art.  II.     Notice  of  Appeal. 


to  intervene  as  a  defendant,  where  he  pleads  a  material  defense 
not  set  up  by  the  other  defendants.101  On  the  other  hand,  the 
following  orders  have  been  held  not  to  "necessarily  affect  the 
final  judgment : ' '  Order  of  reference ; 102  order  granting  a  bill 
of  particulars ; 103  order  substituting  a  person  as  plaintiff ; 104 
order  refusing  to  allow  answer  to  be  amended  after  filing  of 
judge's  decision; 105  order  striking  out  an  answer  as  frivolous, 
where  an  amended  ansAver  is  served ; 106  order  requiring  answer 
to  be  made  more  definite  and  certain ; 107  order  denying  a  mo- 
tion to  send  back  a  commission  for  a  fuller  execution.108 

Successive  reviews  of  interlocutory  judgment  or  inter- 
mediate order.  If  the  appeal  is  from  a  final  judgment,  an  in- 
terlocutory judgment  or  intermediate  order  is  not  brought  up 
for  review,  by  specifying  it  in  the  notice  of  appeal,  if  it  has 
"already  been  reviewed,  on  a  separate  appeal  therefrom,  by 
the  court  or  the  term  of  the  court,  to  which  the  appeal  from 
the  final  judgment  is  taken.109  An  intermediate  order,  separ- 
ately appealed  from  and  affirmed  "by  default,"  has  "already 
been  reviewed,"  within  this  Code  provision.110 

§  2632.     Signature. 

The  notice  should  be  signed  by  the  attorney  of  record  in  the 
court  below,  unless  there  has  been  a  substitution,  in  which 
case  it  should  be  signed  by  the  attorney  substituted.111     This 

ioi  Honegger  v.  Wettstein,  94  N.  Y.  252,  262. 

102  McCall  v.  Moschcowitz,  10  Civ.  Proc.  R.  107.  Bloom  v.  National 
United  Ben.  Sav.  Co.,  81  Hun,  120,  30  N.  Y.  Supp.  700.  Roslyn  Heights 
Land  &  Imp  Co.  v.  Burrowes,  22  App.  Div.  540,  48  N.  Y.  Supp.  15.  Con- 
tra, Stokes  v.  Stokes,  87  Hun,  152,  33  N.  Y.  Supp.  1024. 

103  Raff  v.  Koster,  Bial  &  Co.,  38  App.  Div.  336,  56  N.  Y.  Supp.  997. 

104  Rogers  v.  Ingersoll,  103  App.  Div.  490,  93  N.  Y.  Supp.  140. 
io5  Callanan  v.  Gilman,  52  Super.  Ct.  (20  J.  &  S.)  112. 

loe  Mutual  Life  Ins.  Co.  v.  Hoyt,  10  Wkly.  Dig.  275. 

107  Innes  v  Purcell,  58  N.  Y.  388. 

los  Pratt  v.  Mosetter,  9  Civ.  Proc.  R.  (Browne)  351. 

loo  Code  Civ.  Proc.  §  1316. 

no  Wiener  v.  Morange,  7  Daly,  446. 

in  Objection  to  service  of  notice  by  attorneys  not  substituted  as 
attorneys  of  record  is  waived  by  failure  to  move  to  dismiss.  Thierry 
V.  Crawford,  33  Hun,  366. 


§  2633  TAKING  THE  APPEAL.  3719 


Art.  II.     Notice  of  Appeal. 


rule  is,  however,  subject  to  the  exception  that  if  the  appeal  is 
to  the  court  of  appeals  a  new  attorney  for  the  appellant  may 
sign  the  notice,  though  he  has  not  been  formally  substituted.112 
A  notice  signed  "of  counsel"  is  irregular  but  is  amendable  in 
the  appellate  court.113  It  seems  that  the  fact  that  the  signa- 
ture is  on  the  back  of  the  notice  instead  of  at  the  end  of  it  is 
a  mere  irregularity  which  may  be  cured  by  amendment,11* 
especially  where  it  is  signed  at  the  end  by  the  appellant  him- 
self.115 

§  2633.     To  whom  notice  must  be  given. 

The  notice  of  appeal  must  be  served  ' '  on  the  attorney  for  the 
adverse  party"  and  must  be  filed  in  the  office  of  "the  clerk 
with  whom  the  judgment  or  order  appealed  from  is  en- 
tered."116 The  "adverse  party"  means  the  party  whose  in- 
terest in  relation  to  the  subject  of  the  appeal  is  in  conflict  with 
the  reversal  of  the  order  or  judgment  appealed  from,  or  the 
modification  sought  by  the  appeal.117 

The  adverse  party  may  be  a  co-party.  Where  some  defend- 
ants are  successful,  and  others  unsuccessful,  notice  of  an  ap- 
peal taken  by  the  latter  must  be  given  to  the  former,  if  the 
interests  of  the  successful  defendants  are  adverse  to  those  of 
the  appellants.1155  For  instance,  a  co-defendant  to  whom  the 
judgment  requires  the  defendant,  who  appeals,  to  pay  money, 
is  an  adverse  party  to  whom  notice  must  be  given.119  So  where 
the  question  in  a  foreclosure  suit  is  whether  a  co-defendant's 
mortgage  subsequent  to  plaintiff's  first  mortgage  but  prior  to 

ii2  See  ante,  §  2629. 

n3  Seaman  v.  McReynolds,  40  Super.  Ct.  (8  J.  &  S.)  545. 

n4  Gutbrecht  v.  Prospect  Park  &  C.  I.  R.  Co.,  28  Hun,  497. 

us  Burrows  v.  Norton,  5  T.  &  C.  97. 

us  Code  Civ.  Proc.  §  1300.  Notice  cannot  be  served  on  a  part  of  the 
adverse  parties  and  after  a  decision  on  appeal  a  separate  notice  of 
appeal  be  served  on  the  remainder.  Matter  of  Maxwell,  74  Hun,  307, 
26  N.  Y.  Supp.  216. 

ii7  Cotes  v.  Carroll,  28  How.  Pr.  436;  Hiscock  v.  Phelps,  2  Lans.  106. 

us  So  held  where  action  was  to  construe  will.  West  v.  Place,  80 
Hun,  255,  30  N.  Y.  Supp.  14;  Cotes  v.  Carroll,  28  How.  Pr.  436. 

us  Cooper  v.  Cooper,  76  App.  Div.  221,  78  N.  Y.  Supp.  397. 


3720  TAKING  THE  APPEAL.  §2033 

Art.  II.     Notice  of  Appeal. — To  Whom  Given. 


his  second  mortgage,  should  be  postponed  to  both  of  plaintiff's 
mortgages,  and  said  defendant  appeals,  he  must  give  notice 
to  the  other  defendants  Avhose  answer  affirmed  plaintiff's 
claim.120  If  the  interests  of  a  co-party  are  not  adverse,  he 
need  not  be  given  notice.  For  instance,  an  assignee  of  part  of 
a  mortgage,  made  a  defendant  in  foreclosure,  who  serves  no 
answer  on,  and  makes  no  claim  against,  a  co-defendant,  is  not 
and  adverse  party.1-1  So  where  a  co-trustee  who  does  not  join 
as  plaintiff  is  made  a  defendant,  notice  of  appeal  need  not  be 
given  to  him,  irrespective  of  whether  the  appeal  is  taken  by 
plaintiff  or  by  his  co-defendants.122  And  a  defendant  who  has 
defaulted  need  not  be  given  notice  by  his  co-defendant. 12'1 

The  adverse  party  to  whom  notice  must  be  given  need  not 
be  a  party  to  the  action.  It  is  sufficient  that  he  is  a  party  to 
the  order  appealed  from.  For  instance,  notice  of  an  appeal 
from  an  order  denying  a  motion  for  a  resale  and  requiring  the 
purchaser  to  complete  must  be  given  the  purchaser  at  a  judicial 
sale.124  So  a  person  allowed  to  intervene  in  proceedings  for 
the  distribution  of  firm  assets,  to  prove  his  claim,  becomes  a 
party  to  the  record,  though  neither  plaintiff  nor  defendant,  so 
as  to  be  entitled  to  notice.125 

Notice  of  appeal  from  an  order  of  interpleader  must  be  given 
to  the  defendants  brought  in  by  the  order.126 

Notice  to  one  partner  is  notice  to  both.127 

If,  in  a  mechanic's  lien  action  brought  by  a  sub-contractor, 
notice  of  appeal  is  not  given  to  the  owner  of  the  property  af- 
fected by  the  lien,  the  court  has  no  jurisdiction  to  reverse  that 
portion  of  the  judgment  which  declares  the  lien  of  the  subcon- 
tractor to  be  void.12S 

120  Hiscock  v.  Phelps,  2  Lans.  106. 

121  Pickersgill  v.  Read,  7  Hun,  636. 

122  Kilmer  v.  Hathorn,  78  N.  Y.  228- 

123  Garnsey  v.  Knights,  1  T.  &  C.  259. 

124  Barnes  v.  Stoughton,  6  Hun,  254. 

i2o  Dawson  v.  Parsons,  16  Misc.  190,  38  N.  Y.  Supp.  1000. 
i2G  Bemis  v.  Huntington,  15  App.  Div.  627,  44  N.  Y.  Supp.  439. 
12?  Miller  v.  Perrine,  1  Hun,  620  (mem). 

128  Murdock  v.  Jones,  3  App.  Div.  221,  38  N.  Y.  Supp.  461.  See,  also, 
Stanton  v.  Gohler,  16  Misc.  383,  38  N.  Y.  Supp.  64. 


■a  2H34  TAKING  THE  APPEAL.  3721 


Art.  II.     Notice  of  Appeal. 


Supplying  omission  to  give  notice  to  all.  It  will  be  ob- 
served that  section  1300  of  the  Code  requires  notice  to  be  given 
both  to  the  adverse  party  and  to  the  clerk  of  the  court.128  Sec- 
tion 1303  of  the  Code  provides,  however,  that  where  the  ap- 
pellant, seasonably  and  in  good  faith,  serves  the  notice  of  ap- 
peal either  upon  the  clerk  or  upon  the  adverse  party,  or  his 
attorneys,  but  omits,  through  mistake,  inadvertence,  or  excus- 
able neglect,  to  serve  it  upon  the  other,  the  court,  in  or  to 
which  the  appeal  is  taken,  upon  proof,  by  affidavit,  of  the  facts, 
may,  in  its  discretion,  permit  the  omission  to  be  supplied  upon 
such  terms  as  justice  requires.130  This  Code  section  applies 
only  where  the  notice  of  appeal  has  been  properly  served 
either  on  the  clerk  of  the  court  or  on  the  adverse  party  within 
the  time  allowed  by  law.131  If  notice  is  served  on  a  part  of 
the  adverse  parties  and  is  filed  with  the  clerk,  the  court  may 
permit  the  appellant,  on  terms,  to  perfect  his  appeal  by  serving 
a  notice  on  the  other  adverse  parties.  But  service  on  only  a 
part  of  the  adverse  parties,  and  not  on  the  clerk,  does  not  au- 
thorize a  nunc  pro  tunc  order  to  perfect  the  appeal  as  to  the 
adverse  parties  not  served  within  the  statutory  time,  but  only 
as  to  the  adverse  parties  served.132  It  seems  to  be  "excusable 
neglect"  where  a  defendant  fails  to  serve  a  notice  of  appeal 
on  a  co-defendant.133  If  the  notice  is  served  on  the  clerk  and 
an  ineffectual  attempt  is  made  to  serve  it  on  the  attorney  by 
throwing  the  papers  through  an  open  transom  over  the  door 
of  his  office,  the  court  may  permit  service  on  the  attorney  after 
the  time  to  appeal  has  expired.134 

§  2634.     Person  who  must  be  served. 

The  notice  of  appeal  must  be  served  on  the  attorney  of 
record  of  the  adverse  party.     He  is  considered  the  attorney  in 

129  Langdon  v.  Evans,  29  Hun,  652. 

130  This  Code  rule  overrules  Morris  v.  Morange,  17  Abb.  Pr.  86, 
which  was  decided  under  the  old  Code. 

131  Hall  v.  City  of  New  York,  79  App.  Div.  102,  108,  79  N.  Y.  Supp. 
979. 

132  Hall  v.  City  of  New  York,  79  App.  Div.  102,  108,  109,  79  N.  Y. 
Supp.  979. 

133  Cooper  v.  Cooper,  76  App.  Div.  221,  78  N.  Y.  Supp.  397. 
is*  Claflin  v.  Du  Bois,  15  State  Rep.  963,  1  N.  Y.  Supp.  150. 


3722  TAKING  THE  APPEAL.  §  2635 

Art.  II.     Notice  of  Appeal. — Who  Must  Be  Served. 

the  action  for  the  purpose  of  serving  on  him  a  notice  of  appeal, 
until  changed  by  the  party  and  due  notice  given,  which  change 
may,  however,  be  effected  without  any  application  to  the 
court.135  The  notice  may  be  served  on  attorneys  who,  though 
not  the  attorneys  of  record,  have  authority  to  admit  service  in 
the  name  of  the  party.130  An  attorney  employed  and  appear- 
in-  specially  to  obtain  the  vacation  of  an  order  cannot,  after  ob- 
taining the  vacating  order,  withdraw  from  the  case,  so  as  to  pre- 
vent the  service  on  him  of  a  notice  of  appeal  from  the  order.137 

Where  attorney  cannot  be  served.     ' '  If  the  attorney  for 

the  adverse  party  is  dead,  or  if  he  has  been  removed,  and  notice 
of  the  removal  has  been  served  upon  the  appellant's  attorney, 
and  another  attorney  has  not  been  substituted  in  his  place ;  or 
if,  for  any  reason,  service  of  a  notice  of  appeal  upon  the  proper 
attorney  for  the  adverse  party  cannot,  with  due  diligence,  be 
made  within  the  state,  the  notice  of  appeal  may  be  served  upon 
the  respondent,  in  the  manner  prescribed  by  law  for  serving  it 
upon  an  attorney.  If  personal  service  upon  the  respondent 
cannot,  with  due  diligence,  be  so  made  within  the  state,  the 
notice  of  appeal  may  be  served  upon  him,  and  notice  of  the 
subsequent  proceedings  may  be  given  to  him,  as  directed  by 
a  judge  of  the  court,  in  or  to  which  the  appeal  is  taken. ' ' 138 
Except  as  provided  in  this  Code  section,  a  service  on  the  party 
himself  instead  of  on  his  attorney  is  insufficient ; 139  and  the 
objection  that  service  was  made  on  the  party  instead  of  on  his 
attorney  may  be  taken  advantage  of  at  any  time  provided  the 
party  has  not  appeared  and  proceeded  in  such  a  manner  as 
to  give  the  court  jurisdiction.140 

§  2635.     Mode  of  service. 

The  notice  must  be  served  as  prescribed  in  the  Code  article  141 

135  Tripp  v.  De  Bow,  5  How.  Pr.  114. 

ise  Chase  v.  Bibbins,  71  N.  Y.  592. 

is?  Graves  v.  Graham,  18  Misc.  600,  43  N.  Y.  Supp.  508. 

iss  Code  Civ.  Proc.  &  1302. 

is:.,  140  Tripp  v.  De  Bow,  5  How.  Pr.  114. 

"I  Code  Civ.  Proc.  §§  796-802. 


§  9639  TAKING  THE  APPEAL.  3723 


Art.  II.     Notice  of  Appeal. 


relating  to  service  of  papers  in  general,142  which  Code  provis- 
ions have  been  fully  considered  in  a  preceding  volume.143 

Filing  with  clerk.  ■  Service  on  the  clerk  should  be  made 

by  filing  the  notice  in  his  office.144  Mailing  the  notice  of  appeal 
to  the  clerk  of  the  court  is  not  a  legal  service,  unless  the  notice 
is  actually  received  by  him  within  the  time  limited  by  the  Code 
in  which  to  appeal.145 

§  2636.     Time  of  service. 

Of  course,  the  notice  must  be  served  before  the  time  to  ap- 
peal expires.146  If  leave  of  court  is  necessary  to  authorize  an 
appeal,  the  notice  of  appeal  should  not  be  served  until  after 
such  leave  is  granted.  A  notice  of  appeal  to  the  court  of  ap- 
peals from  an  order  not  appealable  without  leave  of  court  will 
not  support  an  appeal  taken  pursuant  to  leave  of  court  subse- 
quently granted.147 

Under  the  old  Code,  in  order  to  perfect  an  appeal  to  the 
court  of  appeals,  it  was  necessary  that  the  requisite  undertak- 
ing should  be  executed  before  the  notice  of  appeal  was  served, 
since  a  copy  of  the  undertaking  was  required  to  be  served  with 
the  notice  of  appeal.  But  under  the  present  Code  the  notice 
of  appeal  may  be  served  before  any  undertaking  has  been  exe- 
cuted, though  it  does  not  become  effectual  for  any  purpose 
until  an  undertaking  has  been  given.148 

§  2637.     Compelling  acceptance  of  service. 

A  late  case  holds  that  a  special  term  has  no  power  to  set 
aside  a  notice  of  appeal  to  the  appellate  division  nor  to  compel 

i«  Code  Civ.  Proc.  §  1300. 
143  Volume  1,  pp.  653-670. 

I**  Code  Civ.  Proc.  §  1300.  Need  not  be  served  on  clerk  personally. 
Hoffenberth  v.  Muller,  12  Abb.  Pr.  (N.  S.)  221. 

145  Crittenden  v.  Adams,  5  How.  Pr.  310;  Morris  v.  Morange,  17  Abb. 
Pr.  86,  26  How.  Pr.  247.  Service  of  the  notice  on  the  clerk  by  mail, 
on  the  last  day,  is  not  good,  where  not  received  until  a  succeeding  day. 
Van  Clief  v.  Mersereau,  8  Abb.  Pr.  (N.  S.)  193,  note. 

146  When  appeal  to  be  taken,  see  ante,  §§  2595-2600. 

147  Steamship  Richmond  Hill  Co.  v.  Seager,  160  N.  Y.  312. 

148  Raymond  v.  Richmond,  76  N.  Y.  106. 


37-24  TAKING  THE  APPEAL.  §  2638 


Art.  II.     Notice  of  Appeal. 


its  acceptance.149  It  lias  been  held,  however,  that  the  party  on 
whom  a  notice  of  appeal  is  served  may  be  compelled  to  ac- 
cent service  though  it  contains  a  statement  of  an  intention  to 
bring  up  for  review  an  order  reviewable  only  by  a  separate  ap- 
peal.150  But  defendant  will  not  be  compelled  to  accept  service 
of  a  notice  of  appeal  from  an  order  denying  a  motion  for  a 
discovery  where  plaintiff  is  in  default  in  the  service  of  the 
complaint  so  as  to  entitle  defendant  to  an  order  dismissing  the 
action.151 

§  2638.     Amendment. 

Provided  there  is  something  to  amend  by,152  a  notice  of  ap- 
peal which  is  not  misleading  may  be  amended  by  the  appellate 
court,  so  long  as  the  amendment  does  not  give  a  right  of  ap- 
peal after  the  time  to  appeal  has  elapsed.  For  instance,  leave 
to  amend  the  notice,  so  as  to  make  it  an  appeal  from  a  judg- 
ment instead  of  an  order,  will  not  be  allowed  after  the  time 
for  taking  an  appeal  from  the  judgment  has  expired.153  So 
the  court  cannot  amend  a  notice  of  appeal  from  a  judgment 
by  adding  a  statement  that  the  appeal  is  also  from  an  inter- 
mediate order 154  or  an  interlocutory  judgment,155  after  the 
time  to  appeal  from  such  order  or  interlocutory  judgment  has 
expired.  But  a  notice  of  appeal  to  the  court  of  appeals  may 
be  amended  after  the  time  for  appealing  has  expired,  by  in- 
serting therein,  nunc  pro  tunc,  a  stipulation  for  judgment  abso- 

148  ziadi  v.  Interurban  St.  R.  Co.,  97  App.  Div.  137,  89  N.  Y.  Supp. 
606. 

iso  Masor  v.  Jacobus,  84  N.  Y.  Supp.  270. 

isi  Phillips  v.  Equitable  Life  Assur.  Soc,  55  State  Rep.  29S,  26  N.  Y. 
Supp.  523. 

152  People  ex  rel.  Gemmill  v.  Eldridge,  7  How.  Pr.  108. 

153  Biggert  v.  Nichols,  18  Misc.  596,  42  N.  Y.  Supp.  472.  Amendment 
is  proper  before  time  to  appeal  from  judgment  has  expired.  Kent  v. 
Sibley,  5  N.  Y.  Supp.  448. 

154  piper  v.  Van  Buren,  27  Hun,  384;  Enos  v.  Thomas,  5  How.  Prv 
361;  Richards  v.  Price,  16  Civ.  Proc.  R.  (Browne)  398,  3  N.  Y.  Supp. 
941. 

155  Patterson  v.  McCann,  38  Hun,  531.  See,  also,  Hoffman  v.  Man- 
hattan R.  Co.,  149  N.  Y.  599. 


§  2639  TAKING  THE  APPEAL.  3725 

Art.  II.     Notice  of  Appeal. 

lute  in  case  of  affirmance.156  Subject  to  the  exception  already 
noted,  it  seems  that  any  defect  in  a  notice  of  appeal  may  be 
amended,  unless  it  is  so  gross  that  the  court  cannot  be  satis- 
fied that  the  paper  relied  on  as  a  notice  was  intended  for  an 
appeal  in  the  action  in  question.137  The  notice  may  be  amended 
nunc  pro  tunc  time  by  inserting  therein,  as  appellants,  the 
names  of  the  attorneys,  the  real  parties  in  interest.158  Where 
an  appeal  is  taken  from  an  interlocutory  judgment  after  the 
entry  of  final  judgment,  and  all  the  parties  consent,  the  notice 
of  appeal  and  other  papers  may  be  amended  by  including  both 
judgments. 


159 


§  2639.     Waiver  of  objections. 

Defects  which  are  not  jurisdictional  may  be  waived,160  as 
by  submitting  the  cause  without  objection.161  Admission  of 
due  service  of  the  notice  of  appeal  is  a  waiver  of  the  objection 
that  it  was  not  served  within  the  time  allowed  for  an  appeal.162 
So  if  no  motion  is  made  to  dismiss  the  appeal,  and  the  respond- 
ent has  treated  the  appeal  as  regularly  taken,  and  has  argued 
it  on  its  merits,  he  has  waived  his  right  to  object  that  the  no- 
tice was  not  served  in  time.163  But  an  admission  by  the  attor- 
ney of  due  service  of  notice  does  not  waive  the  objection  that 
the  notice  was  not  served  in  time  since  even  if  it  could  be  con- 
sidered a  waiver  as  to  respondent's  attorney  it  could  not  affect 
the  notice  served  on  the  clerk.164  So  the  failure  to  serve  the 
notice  in  time  is  not  waived  by  granting  an  extension  of  time 

iseMott  v.  Lansing,  5  Lans.  516.  The  rule  is  otherwise,  it  seems, 
if  consent  to  judgment  absolute  is  intentionally  omitted  and  persist- 
ently refused.     Wilmore  v.  Flack,  96  N.  Y.  512. 

157  Sherman  v.  Wells,  14  How.  Pr.  522. 

iss  Fraser  v.  Ward,  2  City  Ct.  R.  345. 

159  Simonson  v.  Wood,  18  WMy.  Dig.  383. 

ioo  Silsbee  v.  Gillespie,  9  Abb.  Pr.  (N.  S.)  139. 

isi  See  Hill  v.  Burke,  62  N.  Y.  111. 

162  Struver  v.  Ocean  Ins.  Co.,  2  Hilt.  475,  9  Abb.  Pr.  23. 

iG3  Pickersgill  v.  Read,  7  Hun,  636,  followed  in  Ostrander  v.  Camp- 
bell, 20  State  Rep.  806,  3  N.  Y.  Supp.  597. 

164  Waring  v.  Senior,  48  How.  Pr.  226.  Contra,  Stubbs  v.  Stubbs,  11 
Wkly.  Dig.  243. 


3726  TAKING  THE  APPEAL.  §  2640 

Art.  III.     Security  to  Perfect  Appeal. 

to  make  a  case  where  the  extension  is  asked  for  and  granted 
on   the  supposition  that  the  notice  of  appeal  has  been  duly 

served.1'" 

ART.  111.  SECURITY  TO  PERFECT  APPEAL. 

§  2640.     Necessity  on  appeal  to  the  court  of  appeals. 

Security  must  be  given  to  perfect  an  appeal  to  the  court  of 
appeals  166  except  in  a  case  where  it  is  specially  prescribed  by 
law  that  security  is  not  necessary.107  Where  required,  no  ap- 
peal is  perfected  until  the  undertaking  is  filed  and  notice 
thereof  given.16S 

The  court  cannot  dispense  with  the  giving  of  security  to  per- 
fect the  appeal,100  though  the  giving  of  the  undertaking  may 
be  waived  by  the  written  consent  of  the  respondent.170 

Appeal  by  people  or  officer.     Upon  an  appeal,  taken  by 

the  people  of  the  state,  or  by  a  state  officer,  or  board  of  state 

i65Durant  v.  Abendroth,  53  Super.  Ct.   (21  J.  &  S.)  15. 

ice  "To  render  a  notice  of  appeal,  to  the  court  of  appeals,  effectual, 
for  any  purpose,  except  in  a  case  where  it  is  specially  prescribed  by 
law  that  security  is  not  necessary  to  perfect  the  appeal,  the  appellant 
must  give  a  written  undertaking,  to  the  effect,  that  he  will  pay  all 
costs  and  damages,  which  may  be  awarded  against  him  on  the  appeal, 
not  exceeding  five  hundred  dollars.  The  appeal  is  perfected,  when 
such  an  undertaking  is  given  and  a  copy  thereof,  with  notice  of  the 
filing  thereof,  is  served,  as  prescribed  in  this  title."  Code  Civ.  Proc. 
§  1326;  Guilfoyle  v.  Pierce,  22  App.  Div.  131,  47  N.  Y.  Supp.  899.  It 
is  immaterial  whether  appeal  is  from  judgment  or  order.  Cowdin  v. 
Teal,  67  N.  Y.  581.  If  undertaking  is  not  given  appeal  may  be  dis- 
missed. See  Reese  v.  Boese,  92  N.  Y.  632;  contra,  Benedict  &  B.  Mfg. 
Co.  v.  Thayer,  82  N.  Y.  610. 

167  Code  Civ.  Proc.  §§  1326,  1333. 

168  Thompson  v.  Blanchard,  2  N.  Y.  (2  Comst.)  561.  Architectural 
Iron  Works  v.  City  of  Brooklyn,  85  N.  Y.  652.  Must  be  filed  with 
clerk  with  whom  judgment  or  order  appealed  from  is  entered.  Code 
Civ.  Proc.  §  1307. 

169  Architectural  Iron  Works  v.   City  of  Brooklyn,   85   N.   Y.   652. 

170  Code  Civ.  Proc.  §  1305.  An  agreement  in  open  court  to  waive 
security  to  perfect  an  appeal,  where  the  appeal  is  afterwards  treated 
as  pending,  precludes  the  respondent  from  objecting  to  the  want  of 
security.  Lentilhon  v.  City  of  New  York,  5  N.  Y.  Super.  Ct.  (3  Sandf.) 
721. 


§  2640 


TAKING  THE  APPEAL.  3727 


Art.  III.     Security  to  Perfect  Appeal. 


officers,  or  a  board  of  supervisors  of  a  county,  the  service  of 
the  notice  of  appeal  perfects  the  appeal,  and  stays  the  execu- 
tion of  the  judgment  or  order  appealed  from,  without  an  un- 
dertaking or  other  security.171 

Appeal  by  domestic  municipal  corporation.    Upon  an 

appeal  taken  by  a  domestic  municipal  corporation,  the  service  of 
the  notice  of  appeal  perfects  the  appeal,  and  stays  the  execution 
of  the  judgment  or  order  appealed  from,  without  an  under- 
taking or  other  security,  except  that,  where  an  appeal  is  taken 
to  the  court  of  appeals,  the  appellate  division,  or  the  supreme 
court,  the  court  in  or  from  which  the  appeal  is  taken  may,  in 
its  discretion,  require  security  to  be  given.  In  that  case,  the 
form,  nature,  and  extent  of  the  security,  not  exceeding  that 
which  is  required  in  a  like  case,  from  a  natural  person,  and  the 
time  and  manner  in  which  it  must  be  given,  must  be  prescribed 
by  the  order  of  the  court;  and  the  mayor,  comptroller,  or 
counsel  to  the  corporation,  may  execute,  in  behalf  of  the  cor- 
poration, an  undertaking,  so  required  to  be  given.172 

This  Code  rule  applies,  inter  alia,  to  appeals  by  an  officer  of 
a  domestic  municipal  corporation  where  he  acts  in  his  official 
capacity.  For  instance,  an  appeal  taken  by  the  head  of  an 
executive  department  from  an  order  requiring  him  to  perform 
an  act  in  his  official  capacity  is  an  appeal  by  a  municipal  cor- 
poration.173 So  is  an  appeal  by  a  commissioner  of  public 
works  from  a  judgment  or  order  directing  him,  as  such  officer, 
to  do  some  act  affecting  the  corporate  interests.174  So  the  head 
of  the  department  of  bridges  in  New  York  city  represents  the 
corporation.175 

i7i  Code  Civ.  Proc.  §  1313. 

172  Code  Civ.  Proc.  §  1314.  Applies,  inter  alia,  to  appeals  from 
orders  in  mandamus  proceedings.  Matter  of  Croker  v.  Sturgis,  38 
Misc.  596,  78  N.  Y.  Supp.  77. 

its  Matter  of  Croker  v.  Sturgis,  38  Misc.  596,  78  N.  Y.  Supp.  77,  and 
cases  cited. 

174  people  ex  rel.  Standard  Gas  L.  Co.  v.  Daly,  75  Hun,  186,  27  N.  Y. 
Supp.  283. 

175  New  York  Mail  &  Newspaper  Transp.  Co.  v.  Shea,  30  App.  Div. 
374,  52  N.  Y.  Supp.  5. 


3728  TAKING  THE  APPEAL.  §  2642 

Art.  III.     Security  to  Perfect  Appeal. 


§  2641.     Necessity  on  appeal  to  the  appellate  division  or  su- 
preme court. 

Security  is  not  required  to  perfect  an  appeal  to  the  appel- 
late division  of  the  supreme  court  from  a  judgment  of  the  su- 
preme court  nor  an  appeal  to  the  supreme  court  from  an  in- 
ferior court,176  except  where  it  is  otherwise  specially  prescribed 
by  law  in  appeals  from  orders  in  special  proceedings.177 

§  2642.     Form  and  contents. 

The  general  rules  as  to  the  form  and  contents  of  an  under- 
taking to  stay  proceedings,17-  in  so  far  as  applicable,  apply  to 
undertakings  to  perfect  an  appeal.  The  undertaking  must  be 
conditioned  to  pay  "all  costs  and  damages  which  may  be 
awarded  against  him  [appellant]  on  the  appeal,  not  exceeding 
five  hundred  dollars."179     The  costs  referred  to  are  merely 

iTGCocle  Civ.  Proc.  §§  1341,  1343,  1351,  1360.  To  perfect  appeal  from 
city  court  of  New  York  to  appellate  term,  no  security  is  required, 
Quigg  v.  International  Shirt  &  Collar  Co.,  16  Misc.  39,  37  N.  Y.  Supp. 
916. 

itt  Code  Civ.  Proc.  §  1360. 

its  See  post,  §  2671. 

iT9  Code  Civ.  Proc.  §  1326.  Undertaking  conditioned  to  pay  damages 
only  is  insufficient.  Langley  v.  Warner,  1  N.  Y.  (1  Comst.)  606.  Prior  to 
Codes  it  was  held  that  where. an  appeal  was  from  two  orders  an  under- 
taking given  as  if  the  appeal  was  from  one  order  was  insufficient. 
Schermerhorn  v.  Anderson,  (1  Comst.)  1  N.  Y.  430.  It  would  seem 
that  said  rule  still  applies. 

On  appeal  to  the  court  of  appeals  from  a  judgment  not  directing 
the  payment  of  money,  appellant  gave  an  undertaking  to  pay  all  dam- 
ages which  defendant  might  sustain  by  reason  of  the  appeal,  and  that, 
if  the  judgment  appealed  from  was  affirmed,  he  would  pay  the  sum 
recovered  or  directed  to  be  paid  by  him  by  the  judgment  at  special 
term,  or  the  part  thereof  as  to  which  it  was  affirmed  or  dismissed, 
and,  if  affirmed  or  dismissed,  that  he  would  pay  the  notes  held  by  a 
certain  defendant  to  the  extent  to  which  they  had  been  declared  by  a 
judgment  of  the  special  term  to  be  cash  notes,  not  exceeding  a  certain 
sum.  The  court  of  appeals  affirmed  the  judgment  without  costs. 
Held,  that  the  undertaking,  considered  as  a  statutory  one,  created  no 
liability,  but  that  it  could  be  enforced  as  a  common-law  obligation. 
Gein  v.  Little,  43  Misc.  421,  89  N.  Y.  Supp.  488. 


S  2642  TAKING  THE  APPEAL.  3729 

Art.  III.     Security  to  Perfect  Appeal. 

the  costs  on  appeal  to  the  court  of  appeals,180  while  the  dam- 
ages mentioned  are  the  damages  which  the  court  may  award 
for  delay.181  "Where  an  undertaking  is  given  beyond  what  is 
required  for  the  perfecting  of  the  appeal,  so  much  thereof  as 
is  in  excess,  unless  a  consideration  therefor  can  be  shown 
aliunde  to  exist,  is  without  consideration  and  cannot  be  en- 
forced.182 

If  the  adverse  party  has  died  since  the  making  of  the  order, 
or  the  rendering  of  the  judgment,  appealed  from,  or  the  judg- 
ment appealed  from  was  rendered  after  his  death,  so  that  the 
appeal  cannot  be  heard  until  the  personal  representatives  or 
others  have  been  substituted  as  the  respondent,  the  undertak- 
ing must  recite  the  fact  of  the  adverse  party's  death.183 

Where  there  is  a  dispute  as  to  the  character  of  the  judgment 
and  the  appeal  is  to  the  court  of  appeals,  the  motion  for  an 
order  fixing  the  amount  of  the  undertaking  to  be  given  should 
be  made  before  the  appellate  division.184 

Form  of  undertaking  to  perfect  appeal  to  the  court  of  appeals. 

Supreme  court. 
[Title  of  action.] 

Whereas,  on  the  — . day  of  ,  190 — ,  in  the  supreme  court, 

,  the  above-named  plaintiff,  recovered  a  judgment  against , 

the  above-named  defendant,  for dollars,  damages  and  costs; 

And  the  said  defendant  feeling  aggrieved  thereby,  intends  to  appeal 
herefrom  to  the  court  of  appeals: 

Now,  therefore,  we,  ,  [banker],  residing  at  No.  street 

in  the  city  of ,  and [farmer],  residing  at ,  do  hereby 

jointly  and  severally  undertake  that  the  appellant  will  pay  all  costs 
and  damages  which  may  be  awarded  against  him  on  said  appeal,  not 
exceeding  five  hundred  dollars. 

[Date.]  [Signatures   of   sureties.],    . 

[Venue.] 

iso  See  post,  §  2649. 

isi  Post  v.  Doremus,  60  N.  Y.  371. 

182  post  v.  Doremus,  60  N.  Y.  371;  Mittnacht  v.  Kellermann,  105  N. 
Y.  461;  Gein  v.  Little,  43  Misc.  421,  89  N.  Y.  Supp.  488. 

183  Code  Civ.  Proc.  §  1297. 

184  Matter  of  Blair,  24  Civ.  Proc.  R.  (Browne)  304,  33  N.  Y.  Supp. 
440. 

N.  Y.  Prac— 234. 


3730  TAKING  THE  APPEAL.  §  2642 


Art.  III.     Security  to  Perfect  Appeal. 


On  this  day  of ,  190 — ,  before  me  appeared  and 

,  to  me  personally  known  to  be  the  same  persons  described  in. 


and  who  executed,  the  above  undertaking,  and  severally  acknowledged 
that  they  executed  the  same. 

[Signature  and  official  title  of  officer  J 

[Venue.] 

being  duly  sworn,  says  that  he  is  a  resident  of  this  state, 

and  is  a  freeholder  (or  householder)  therein,  and  is  worth  the  sum  of 
[twice  the  amount  specified  in  the  undertaking]  one  thousand 
($1,000)  dollars,  over  all  the  debts  and  liabilities  which  he  owes  or 
has  incurred,  and  exclusive  of  property  exempt  by  law  from  levy  and 
sale  under  execution. 

[Jurat.]  [Signature.] 

[Add  like  affidavit  of  other  surety,  if  there  are  two.] 

One  or  more  undertakings.     The  undertaking  to  per- 


fect an  appeal  may  be  a  separate  instrument  or  may  be  com- 
bined with  an  undertaking  to  stay  proceedings.185  One  un- 
dertaking given  as  if  there  was  only  one  respondent  is  proper 
though  there  are  several  respondents  in  whose  favor  separate 
bills  of  costs  have  been  taxed.186 

Form  of  undertaking  to   perfect  appeal   and  to  stay  execution   of 

a  judgment  for  money. 

[Same  as  preceding  form  but  add  to  body  of  undertaking,  at  the 
end  thereof,  the  following:]  and  do  also  jointly  and  severally  under- 
take that  if  the  judgment  appealed  from,  or  any  part  thereof,  is  af- 
firmed, or  the  appeal  is  dismissed,  the  appellant  will  pay  the  sum 
recovered  or  directed  to  be  paid  by  the  judgment,  or  the  part  thereof 
as  to  which  it  is  affirmed. 

[Date,  signatures,  etc.,  as  in  preceding  form  except  that  affidavit  of 
sureties  must  be  for  more  than  $1,000.] 

Form   of   undertaking   to   perfect   appeal   and   to   stay   execution   of 

a  judgment  directing  payment  of  money  in  instalments. 

Supreme  court. 
[Title  of  cause.] 

Whereas,  on  the day  of ,  in  the  supreme  court,  , 


the   above-named   ,   recovered    a  judgment   against  ,   the 

185  Code  Civ.  Proc.  §  1334. 

iso  Weaver  v.  Ely,  1  Month.  Law  Bui.  83. 


§  2644  TAKING  THE  APPEAL.  3  731 


Art.  III.     Security  to  Perfect  Appeal. 


above-named  ,  for  dollars,  damages  and  costs,  whereby 

the  said  was  directed  to  pay  said  damages  in  instalments  as 

follows:    [insert  provisions  of  judgment]. 

And  the  said  ,  feeling  aggrieved  thereby,  intends  to  appeal  to 

the  court: 

Now,  therefore,  we,  ,   [banker],  residing  at  No.  street 

in  the  city  of  ,  and  ,   [merchant],  residing  at  No.  

street  in  the  city  of ,  do  hereby  jointly  and  severally  undertake 

that  the  appellant  will  pay  all  costs  and  damages  which  may  be 
awarded  against  him  on  said  appeal,  not  exceeding  five  hundred  dol- 
lars;  and  do  also  jointly  and  severally  undertake  that  the  appellant, 

,  will  pay  each  instalment  which  becomes  payable  pending  the 

appeal,  or  the  part  thereof  as  to  which  the  judgment  is  affirmed,  not 
exceeding  the  sum  of  dollars. 

[Date.]  [Signatures.] 

[Add  acknowledgment  and  affidavit  of  sureties  as  in  preceding  forms.] 

§  2643.     Sureties. 

The  Code  rules  relating  to  the  sureties,  the  necessity  of  justi- 
fication, etc.,  apply  equally  well  to  both  undertakings  to  per- 
fect an  appeal  and  undertakings  to  stay  proceedings.  They 
are  set  forth  and  construed  in  the  chapter  on  stay  of  proceed- 
ings.187 Where  sureties  are  excepted  to,  and  do  not  justify, 
and  neither  new  sureties  or  a  new  undertaking  are  given,  the 
appeal  may  be  dismissed.188 

§  2644.     Service. 

A  copy  of  the  undertaking,  with  a  notice  showing  where  it 
is  filed,  must  be  served  on  the  attorney  for  the  adverse  party, 
with  the  notice  of  appeal,  or  before  the  expiration  of  the  time 
to  appeal.189  The  undertaking  is  usually  served  with  the  notice 
of  appeal  but  it  may  be  served  at  any  time  before  the  right  to 
appeal  expires.  The  notice  of  appeal  is,  however,  of  no  effect 
until  the  undertaking  is  served.  In  other  words  there  is  no  ap- 
peal pending  until  the   undertaking  is  served.190     It  follows 

187  See  post,  §§  2G76-2678. 

188  See  Liddy  v.  Long  Island  City,  102  N.  Y.  726,  where  ten  days  was 
given  to  perfect  appeal.     See,  also,  Katz  v.  Kuhn,  9  Daly,  12. 

189  Code  Civ.  Proc.  §  1334. 

|m  Raymond  v.  Richmond,  76  N.  Y.  106. 


3732  TAKING  THE  APPEAL.  §  204S 

Art.  III.     Security  to  Perfect  Appeal. 

that  the  cause  cannot  be  put  on  the  calendar  of  the  court  of  ap- 
peals until  the  undertaking  is  served. 

§  2645.     New  undertaking. 

If  the  undertaking-  on  an  appeal  to  the  court  of  appeals  is 
insufficient  and  it  is  stipulated  that  a  new  undertaking  be  al- 
lowed to  be  filed  within  five  days  and,  if  not  filed,  the  appeal 
to  be  dismissed,  the  dismissal  of  the  appeal  pursuant  to  such 
stipulation  does  not  preclude  the  right  of  the  appellant,  within 
the  statutory  time,  to  take  and  perfect  another  appeal.191 

The  Code  provision  as  to  a  new  undertaking  when  the  finan- 
cial condition  of  one  or  both  of  the  sureties  becomes  involved, 
as  set  forth  and  construed  in  a  succeeding  paragraph,192  ap- 
plies equally  well  to  an  undertaking  to  perfect  an  appeal. 

§  2646.    Effect  as  perfecting  appeal. 

When  a  notice  of  appeal  has  been  served,  and  the  proper  un- 
dertaking perfected,  the  case  is  so  far  removed  to  the  court  of 
appeals  from  the  appellate  division  that  the  court  of  appeals 
can  entertain  any  application,  which  the  case,  in  its  then  con- 
dition, may  render  necessary.193 

§  2647.     Vacating  or  setting  aside. 

A  motion  to  set  aside  an  undertaking  on  an  appeal  to  the 
court  of  appeals  should  be  made  to  that  court.194  But  it  will 
not  be  set  aside,  where  sufficient  to  perfect  an  appeal  to  the 
court  of  appeals,  because  it  is  not  sufficient  as  a  stay  of  proceed- 
ings.195 

§  2648.     Supplying  omission  to  give. 

Where  the  appellant  omits,  through  mistake,  inadvertence, 
or  excusable  neglect,  to  do  any  act  necessary  to  perfect  the  ap- 

i9i  Culliford  v.  Gadd,  135  N.  Y.  632. 

192  See  post,  §  2678. 

193  Adams  v.  Fox,  27  N.  Y.  640;  Parks  v.  Murray,  109  N.  Y.  646. 
I'iMorss  v.  Hasbrouck,  15  Wkly.  Dig.  308. 

195  Morss  v.  Hasbrouck,  15  Wkly.  Dig.  308.  This  case  disapproved, 
in  part,  in  McElroy  v.  Mumford,  128  N.  Y.  303,  311. 


§  2650  TAKING  THE  APPEAL.  3733 

Art.  III.     Security  to  Perfect  Appeal. 

peal,  the  court  in  or  to  which  the  appeal  is  taken,  on  proof  by 
affidavit  of  the  facts,  may,  in  its  discretion,  permit  the  omis- 
sion to  be  supplied,  or  an  amendment  to  be  made,  on  such 
terms  as  justice  requires.196 

It  has  been  held  that  an  undertaking  cannot  be  allowed  to 
be  filed  nunc  pro  tunc  to  perfect  an  appeal  to  the  court  of 
appeals ; 19T  but  it  has  also  been  held  that  the  failure  to  give 
an  undertaking,  on  appeal  to  the  court  of  appeals,  where  the 
notice  of  appeal  was  given  reasonably,  in  good  faith,  and  under 
circumstances  which  show  that  the  omission  to  give  the  un- 
dertaking was  due  to  a  reliance  on  an  order  dispensing  with 
security  on  appeal,  which  order  was  invalid  in  so  far  as  it  dis- 
pensed with  an  undertaking  "for  costs,"  is  excusable  neglect, 
so  that  the  omission  may  be  supplied.198 

§  2649.     Liability  on  undertaking1. 

Where  an  undertaking  is  given  merely  to  perfect  an  appeal 
to  the  court  of  appeals,  and  not  to  operate  as  a  stay,  the  liabil- 
ity thereon  is  limited  to  such  costs  as  are  taxed  as  costs  of  the 
appeal  to  the  court  of  appeals,  not  to  exceed  five  hundred  dol- 
lars.199 A  reversal  with  direction  for  a  new  trial  "with  costs 
to  abide  the  event"  terminates  all  liability  on  the  bond.200 

The  general  rules  as  to  actions  on  undertakings,  and  condi- 
tions precedent,  as  set  forth  in  the  article  on  undertakings  to 
stay  proceedings,201  apply  to  actions  on  undertakings  given  to 
perfect  an  appeal. 

§  2650.    Deposit  in  lieu  of  undertaking. 

Where  the  appellant  is  required  to  give  an  undertaking,  he 
may,  in  lieu  thereof,  deposit  with  the  clerk,  with  whom  the 

196  Code  Civ.  Proc.  §  1303. 

197  Nelson  v.  Tenney,  113  N.  Y.  616. 

198  Architectural  Iron  Works  v.  City  of  Brooklyn,  85  N.  Y.  652. 

109  is  not  liable  for  costs  in  all  the  courts,  though  such  judgment  is 
directed  by  the  court  of  appeals.  Bennett  v.  American  Surety  Co., 
73  App.  Div.  468,  77  N.  Y.  Supp.  207,  following  Post  v.  Doremus,  60  N. 
Y.  371  and  Burdett  v.  Lowe,  85  N.  Y.  241. 

200  Jackson  v.  Lawyers'  Surety  Co.,  95  App.  Div.  368,  88  N.  Y.  Supp. 
576. 

201  See  post,  §§  2687  et  seq. 


;\-;\.[  TAKING  THE  APPEAL.  §2650 

Art.  III.     Security  to  Perfect  Appeal. — Deposit. 

judgment  or  order  appealed  from  is  entered,  a  sum  of  money, 
equal  to  the  amount  for  which  the  undertaking  is  required  to 
be  given.  The  deposit  has  the  same  effect  as  filing  the  under- 
taking, and  notice  that  it  has  been  made  has  the  same  effect 
as  notice  of  the  filing  and  service  of  a  copy  of  the  undertaking. 
The  court,  wherein  the  appeal  is  pending,  may  direct  the  mode 
in  which  money  shall  be  kept  and  disposed  of  during  the 
pendency,  or  after  the  determination  of  the  appeal.202 

It  will  be  observed  that  this  Code  provision  provides  only 
for  a  deposit  of  "a  sum  of  money."203  The  deposit  must  in- 
clude, if  a  stay  of  proceedings  is  also  desired  in  an  action  to  re- 
cover money,  not  only  the  amount  of  the  judgment  appealed 
from  but  also  security  for  the  costs  of  the  appeal.204  The  de- 
posit, on  an  appeal  to  the  appellate  division,  cannot  be  with- 
drawn after  a  reversal  by  the  appellate  division,  where  a  fur- 
ther appeal  is  taken  to  the  court  of  appeals,  until  the  decision  of 
the  court  of  appeals.205  But  a  deposit  made  on  an  appeal  to  the 
appellate  division  cannot  be  ordered,  without  the  consent  of  the 
persons  interested,  to  take  the  place  of  an  undertaking  on  a 
further  appeal  to  the  court  of  appeals.206  On  a  reversal,  the 
fund  is  released  from  all  liens  except  those  created  by  judg- 
ment or  assignment.207 

Form  of  notice  of  deposit  to  perfect  appeal. 

[Title  of  cause.] 

Please  take  notice  that  ,  the  appellant,  has,  pursuant  to  sec- 
tion 1306  of  the  Code  of  Civil  Procedure,  deposited  with  the  clerk  of 

202  Code  Civ.  Proc.  §§  1306.  This  Code  provision  applies  to  appeals 
from  a  surrogate's  court  (Id.,  §  2575)  and  to  appeals  or  from  the  city 
court  of  New  York  (Id.,  §§  3190,  3192). 

203  The  acceptance  of  any  other  substitute  cannot  be  compelled. 
Field  v.  Leavitt,  37  Super.  Ct.  (5  J.  &  S.)  537. 

204  Pringle  v.  Leverich,  1  Civ.  Proc.  R.  (1  McCarthy)  372.  That  re- 
spondent may  stipulate  for  a  deposit  of  less  security  than  the  statute 
requires,  see  Jesup  v.  Carnegie,  45  Super.  Ct.  (13  J.  &  S.)  310. 

205  parsons  v.  Travis,  9  N.  Y.  Super.  Ct.  (2  Duer)  659;  Mclntyre  v. 
Strong,  2  Civ.  Proc.  R.  (Browne)  36,  which  held,  however,  that  a  por- 
tion of  the  deposit  might  be  withdrawn  where  the  appellate  division 
had  materially  reduced  the  amount  of  the  judgment. 

206  Mclntyre  v.  Strong,  2  Civ.  Proc.  R.   (Browne)   36. 

207  Jordan  v.  Volkening,  14  Hun,  118. 


§  2651  TAKING  THE  APPEAL.  3735 

Art.  IV.     Curing  Defects  in  Taking  Appeal. 

the  county  of  the  sum  of  five  hundred  dollars,  in  lieu  of  the 

undertaking  required  by  section  1326  of  the  Code  of  Civil  Procedure, 
to  perfect  an  appeal  in  the  above-entitled  action  to  the  court  of  ap- 
peals from  the  judgment  [or  "order"]  entered  in  said  action  on  the 
day  of  ,  190 — ,  in  said  clerk's  office,  pursuant  to  a  de- 
cision of  the  appellate  division. 

[Date.]         [Signature   and   office   address   of   appellant's   attorney.] 

[Address.] 


ART.   IV.     CURING   DEFECTS   IN   TAKING  AN   APPEAL. 

§  2651.     Code  provision. 

Section  1303  of  the  Code,  in  so  far  as  it  permits  the  correc- 
tion of  omissions  in  the  service  of  the  notice  of  appeal,  has  al- 
ready been  considered.208  Said  section  further  provides  that 
where  the  appellant  omits,  through  mistake,  inadvertence,  or 
excusable  neglect,  to  do  any  act  "necessary  to  perfect  the 
appeal"  or  to  stay  the  execution  of  the  judgment  or  order  ap- 
pealed from,  "the  court  in  or  to  which  the  appeal  is  taken,  on 
proof,  by  affidavit,  of  the  facts,  may,  in  its  discretion,  permit 
the  omission  to  be  supplied,  or  an  amendment  to  be  made,  on 
such  terms  as  justice  requires." 

The  power  conferred  by  this  Code  section,  it  will  be  ob- 
served, is  to  supply  such  omissions,  or  grant  such  amendments, 
as  may  be  necessary  to  perfect  the  appeal  already  taken,  and 
not  to  perfect  another  and  different  appeal  or  to  transform  the 
appeal  actually  taken  into  an  appeal  for  another  purpose.209 
The  Code  section  is  often  invoked  in  support  of  an  application 
to  amend  the  undertaking  given  on  appeal.210 

This  Code  provision  is  the  only  one  authorizing  the  court  to 
supply  defects  in  the  proceedings  necessary  to  perfect  the  ap- 
peal, where  the  appeal  is  from  a  court  of  record.  It  will  be 
observed  that  the  application  for  relief  may  be  made  either  to 
the  appellate  court  or  to  the  court  from  which  the  appeal  is 

208  See  ante,  §  2633. 

zoo  Thorn  v.  Roods,  47  Hun,  433.     See,  also,  ante,  §§  2633,  2648. 

210  See  ante,  §  2648. 


3736  TAKING  THE   APPEAL.  §  2651 


Art.  IV.     Curing  Defects  in  Taking-  Appeal. 


taken.  The  proof  must  be  by  affidavit  which  should  clearly- 
state  the  facts  and  excuse,  if  possible,  any  delay  in  moving 
for  relief.  The  granting  of  relief  is  expressly  declared  to  be 
discretionary,  though  as  a  matter  of  fact  the  application,  in 
the  absence  of  special  circumstances,  is  usually  granted  as  a 
matter  of  course.211  Terms  may  be  imposed  as  a  condition  of 
granting  the  relief. 

211  Travis  v.  Travis,  48  Hun,  343,  1  N.  Y.  Supp.  357. 


CHAPTER  VIII. 

SECURITY  TO  STAY  PROCEEDINGS. 

ART.   I.      MODE  OF   PROCURING. 

(A)  GENERAL  RULES. 

Right  to  stay  and  how  obtained,  §  2652. 

Appeal  to  court  of  appeals. 

Appeal  to  appellate  division  from  supreme  court. 

Appeal  to  supreme  court  from  an  inferior  court. 

Appeal   from   orders   made   in   special   proceedings. 

Deposit  in  lieu  of  undertaking,   §   2653. 

Stay  pending  application  for  leave  to  appeal  to  the  court  of 

appeals,  §  2654. 
Power  of  court  to  limit  or  dispense  with  security,  §  2655. 
Waiver  of  security,  §  2656. 
Supplying  omissions,  §  2657. 

(B)  SECURITY  REQUIRED  BY   CODE. 

General  considerations,  §  2658. 

Appeal  from  judgment  for  the  recovery  of  money  only,  §  2659. 

New  undertaking. 

Appeal  from  judgment  for  assignment  or  delivery  of  personal 

property,  §  2660. 
Appeal  from  judgment  for  recovery  of  a  chattel,  §  2661. 
Appeal    from    judgment    directing    execution    of    instrument, 

§  2662. 
Appeal  from  judgment  for  sale,  or  delivery  of  possession,  of 

real  property,  §  2663. 
Appeal  from  judgment  of  affirmance,  2664. 
Appeal    from   judgment   for    specific    performance   or    setting 

aside  conveyance,  §  2665. 

(C)  ORDER  GRANTING  STAY. 

Necessity,  §  2666. 

Power  of  court  or  judge,  2667. 

Motion  papers,  §  2668. 

Propriety  of  granting  a  stay,  §  2669. 

Orders,  §  2670. 

Retroactive  effect. 


3738  SECURITY  TO  STAY  PROCEEDINGS. 

Analysis. 

ART.  II.  GENERAL  RULES  AS  TO  THE  UNDERTAKING. 

Form  and  contents,  §  2671. 

Affidavits  of  sureties. 

Acknowledgment  and  certification. 

One  or  more  instruments. 

Insufficient  undertakings,   §  2672. 
Amendment,  §  2673. 
Filing,  §  2674. 
Service,  §  2675. 

ART.    III.      SURETIES. 

Who  may  be,  and  number,  §  2676. 
Exception  and  justification,  §  2677. 
New   undertaking  where   sureties   become   insolvent,    §    2678. 

Court  in  which  motion  must  be  made. 

Contents  of  new  undertaking. 

Order  as  releasing  sureties  from  liability. 

Effect  of  failure  to  comply  with  order. 

ART.     IV.     LIABILITY     ON,     AND     ENFORCEMENT     OF,     UNDER- 
TAKING. 

Liability   in   general,    §    2679. 

What  constitutes  an  affirmance  so  as  to  make  sureties  liable, 
§  26S0. 

What  constitutes  a  reversal  so  as  to  discharge  sureties, 
§  2681. 

Liability  as  between  sureties  on  different  undertakings, 
§  2682. 

Liability  on  common-law  undertaking,  §  2683. 

Discharge  of  sureties  by  extrinsic  events,  §  2684. 

Change  of  parties  pending  the  appeal. 

Extension  of  time. 

Change  in  the  statutes. 

Discharge  in  bankruptcy. 

Remedy  by  action,  §  2685. 

Exhausting  remedy  by  enforcing  judgment  as  condition  prece- 
dent, §  2686. 

Notice  of  entry  of  judgment  or  order  as  condition  precedent, 
§   2687. 

Sufficiency  of  notice. 

Who  must  be  served. 

Second  notice. 

Waiver  of  failure  to  serve,  or  defects  in,  notice. 


8  2652  SECURITY  TO  STAY  PROCEEDINGS.  3739 

Art.  I.     Mode  of  Procuring. — A.  General  Rules. 


Right   to   sue   as    precluded   by   appeal   to   court   of   appeals, 

§   2688. 
Complaint,  §  2689. 
Defenses,  §  2690. 

ART.  V.      EFFECT  OF  STAY. 

General  rules,  §  2691. 

On  appeal  from  judgment  for  rent,  §  2692. 

On  appeal  from  judgment  awarding  injunction,  §  2693. 

On  appeal  to  court  of  appeals,  §  2694. 

Power  to  discharge  levy  on  personal  property,  §  2695. 

Power  to  suspend  lien  of  judgment  appealed  from,  §  2696. 

Duration  of  stay,  §  2697. 

ART.  I.  MODE  OF  PROCURING. 

(A)  GENERAL  RULES. 

§  2652.     Right  to  stay  and  how  obtained. 

On  appeals  from  final  judgments,  whether  to  the  court  of  ap- 
peals, the  appellate  division,  or  to  the  supreme  court  from  an 
inferior  court,  the  perfecting  the  appeal  does  not,  of  itself,  stay 
proceedings  to  collect  the  judgment,1  except,  in  certain  cases, 
where  the  appeal  is  taken  by  or  in  behalf  of  the  people  or  a 
domestic  municipal  corporation.2  In  every  other  instance  it  is 
necessary  either  (1)  to  give  the  security  prescribed  by  the  Code 
as  necessary  to  stay  proceedings  on  appeals  in  certain  actions,3 
except  where  such  security  is  limited  or  dispensed  with  by  the 
court;4  or  (2)  to  obtain  an  order  for  a  stay  of  proceedings 
and  comply  with  the  conditions  imposed  by  such  order;  or  (3) 
to  make  a  deposit  in  lieu  of  the  undertaking  required.5  The 
security  required  on  appeals  from  orders  depends  on  the  court 
to  which,  and  from  which,  the  appeal  is  taken,  as  will  be  no- 
ticed in  a  succeeding  paragraph.0 

i  See  Taft  v.  Marsily,  49  Hun,  163,  1  N.  Y.  Supp.  621;  Steinback  v. 
Diepenbrock,  5  App.  Div.  208,  39  N.  Y.  Supp.  137. 

2  Code  Civ.  Proc.  §§  1313,  1314.     See  ante,  §  2640. 

3  Code  Civ.  Proc.  §§  1327—1331. 

*  Code  Civ.  Proc.  §  1312.     See  post,  §  2655. 

c  Deposit  in  lieu  of  undertaking,  see  ante,  §  2650. 

e  See  infra,  this  section. 


3740  SECURITY  TO  STAY  PROCEEDINGS.  §  2052 

Ail     I.      Mode  of  Procuring. — A.   General   Rules. 

Appeal  to  court  of  appeals.     If  the  appeal  is  to  the 


court  of  appeals,  from  a  judgment  as  to  which  the  Code  spe- 
cially provides  for  an  undertaking  which  will  operate  as  a 
stay,  il  is  necessary  either  to  give  the  undertaking7  or  to  make 
a  deposit  in  lieu  thereof,8  unless  the  action  is  one  in  which  the 
service  of  the  notice  of  appeal  of  itself  operates  as  a  stay,0 
or  unless  the  security  has  been  limited  or  dispensed  with  by 
order  of  court.10  If  the  Code  requires  a  deposit  of  papers,11 
such  deposit  is  a  prerequisite  to  a  stay,  and  a  deposit  of  money 
in  lieu  thereof  is  not  permissible.  If  the  action  is  one  in  which 
the  Code  makes  no  provision  for  a  stay,  it  is  necessary  to  ap- 
ply for  an  order  to  stay  proceedings  and  to  comply  with  the 
terms  thereof,  unless  the  action  is  one  in  which  the  notice  of 
appeal  is  of  itself  a  stay. 

If  the  appeal  is,  by  leave  of  court,  from  an  order,  a  stay  can 
be  perfected  only  by  an  order  allowing  a  stay  and  compliance 
with  such  order. 

Appeal  to  appellate  division  from  supreme  court.     If 

the  appeal  to  the  appellate  division  is  from  a  final  judgment  of 
the  supreme  court,  "the  appellant  may  give  the  security,  re- 
quired to  perfect  an  appeal  to  the  court  of  appeals,  from  a 
judgment  of  the  same  amount,  or  to  the  same  effect;  and  to 
stay  the  execution  thereof.  In  that  case,  the  execution  of  the 
judgment  appealed  from  is  stayed,  as  upon  an  appeal  to  the 
court  of  appeals,  and  subject  to  the  same  conditions."12 

On  such  an  appeal,  however,  the  appellant  may  either  give 

i  Code  Civ.  Proc.  §§  1327-1332.  These  Code  sections  apply  irre- 
spective of  the  court  in  which  the  action  originated. 

s  Code  Civ.  Proc.  §  1306.     See  post,  §  2G53,  and  ante,  §  2G50. 

o  Code  Civ.  Proc.  §§  1312,  1313.     See  ante,  §  2G40. 

i"Code  Civ.  Proc.  §  1312.     See  post,  §  2655. 

ii  Code  Civ.  Proc.  §  1330.  See  post,  §§  26C0,  2662.  Section  1328  of  the 
Code  (see  post,  §  2660)  allows  a  deposit  of  papers  "or"  the  giving  of 
an  undertaking. 

i2  Code  Civ.  Proc.  §  1352.  This  Code  provision  does  not  apply  to  in- 
terlocutory judgments.  Hatton  v.  McFaddin,  16  State  Rep.  944,  15 
Civ.  Proc.  R.  (Browne)  42,  2  N.  Y.  Supp.  194.  The  security  must  be 
that  prescribed  to  "perfect  an  appeal"  to  the  court  of  appeals  and  to 
"stay  execution."  Moak  v.  Hayes,  25  Hun,  316. 


§  2652  SECURITY  TO  STAY  PROCEEDINGS.  3741 

Art.   I.     Mode  of  Procuring. — A.   General  Rules. 

such  security  or,  at  his  option,  apply  for  an  order  directing  a 
stay  as  authorized  by  section  1351  of  the  Code.  Section  1351 
provides,  inter  alia,  that  on  an  appeal  to  the  appellate  division 
from  a  judgment  or  order  of  the  supreme  court,  the  appeal, 
except  where  it  is  otherwise  specially  prescribed  by  law,  i.  e., 
in  cases  where  the  notice  of  appeal  effects  a  stay,  "does  not 
stay  the  execution  of  the  judgment  or  order  appealed  from; 
unless  the  court,  in  or  from  which  the  appeal  is  taken,  ior  a 
judge  thereof,  makes  an  order  directing  such  a  stay.  Such  an 
order  may  be  made,  and  may,  from  time  to  time,  be  modified, 
upon  such  terms,  as  to  security  or  otherwise,  as  justice  re- 
quires. ' ' 13 

If  security  is  given,  either  as  a  condition  of  granting  the 
order, » or  the  security  required  to  perfect  an  appeal  to  the 
court  of  appeals  and  to  stay  proceedings,  the  Code  provisions 
relating  to  such  security  on  an  appeal  to  the  court  of  appeals 
apply  thereto  as  if  the  appellate  division  was  specified  in  those 
provisions  in  place  of  the  court  of  appeals,  and  a  judge  of  the 
same  court  in  the  place  of  a  judge  of  the  court  below.14 

The  appellate  division  may  grant  a  stay  of  proceedings  on 
any  judgment  or  order  of  the  supreme  court  from  which  an 
appeal  is  pending.15 

Appeal  to  supreme  court  from  an  inferior  court.    If  the 

appeal  is  to  the  supreme  court  from  the  "final  judgment"  of  an 
inferior  court,  the  same  securit}'  must  be  given  to  stay  proceed- 
ings as  on  an  appeal  to  the  court  of  appeals.10  If  the  appeal 
is  to  the  supreme  court  from  an  "order"  of  an  inferior  court, 
the  appellate  court,  or  a  judge  thereof,  may  direct  a  stay  of 
the  execution  of  the  order,  on  such  terms,  as  to  security  or 
otherwise,  as  justice  requires.17 

is  Proceedings  should  not  be  stayed  without  security  except  where 
called  for  by  the  circumstances  of  the  case.  Sternbach  v.  Friedman, 
29  App.  Div.  480,  51  N.  Y.  Supp.  1068. 

14  Code  Civ.  Proc.  §  1351.  This  section  applies  to  an  appeal  from 
an  order  in  a  special  proceeding,  except  as  otherwise  specially  pre- 
scribed by  law.  Code  Civ.  Proc.  §  1360.  Granting  of  stay  is  discre- 
tionary.    Wilson  v.  Grant,  59  How.  Pr.  350. 

is  Code  Civ.  Proc.  §  1348. 

i6  Code  Civ.  Proc.  §  1341. 

it  Code  Civ.  Proc.  §  1343. 


3742  SECURITY  TO  STAY  PROCEEDINGS.  §  2G54 

Art.   I.     Mode  of  Procuring. — A.   General   Rules. 

Appeal  from  orders  made  in  a  special  proceeding.     Ex- 


cept as  otherwise  specially  prescribed  by  law,18  the  rules  laid 
down  relating  to  staying  the  execution  of  an  order  of  the  su- 
preme court  in  an  action  which  has  been  appealed  to  the  ap- 
pellate division,  apply  to  an  appeal  to  the  appellate  division 
from  an  order  affecting  a  substantial  right,  made  in  a  special 
proceeding,  at  a  special  or  trial  term  of  the  supreme  court,  or 
by  a  justice  thereof.19 

§  2653.     Deposit  in  lieu  of  undertaking. 

The  Code  rule  as  to  a  deposit  in  lieu  of  an  undertaking,  as 
set  forth  in  a  preceding  paragraph,20  applies  to  an  undertaking 
i>iven  to  stay  proceedings  as  well  as  to  an  undertaking  to  per- 
fect an  appeal. 

Form  of  notice  of  deposit. 

[Title  of  cause.] 

Please  take  notice  that,  on  the  day  of  ,  190 — ,  A.  X., 

the  appellant  in  the  above  action,  pursuant  to  section  1306  of  the  Code 

of  Civil  Procedure,  deposited  the  sum  of  dollars  with  the  clerk 

of  the  county  of ,   to   stay  execution   of   the  judgment  of  the 

court,  from  which  an  appeal  has  been  taken  to  the court 

until  the  hearing  and  decision  of  the  appeal  therefrom. 

[Date.]  [Signature,  etc.,  of  appellant's  attorney.] 

[Address.] 

§  2654.     Stay  pending  application  for  leave  to  appeal  to  the 
court  of  appeals. 

A  party  aggrieved  by  the  decision  of  the  appellate  division, 
on  presenting  proof  by  affidavit  that  he  intends  to  apply  for 
leave  to  appeal  to  the  court  of  appeals,  where  the  action  is  one 
mentioned  in  subdivision  two  of  section  191  of  the  Code,  and 

18  Stay  of  final  order  awarding  writ  of  prohibition,  see  Code  Civ. 
Proc.  §  2101.  Stay  of  summary  proceedings,  see  Id.  §  2262.  Stay  of 
order  granting  writ  of  mandamus,  see  Id.  §§  2087,  2089.  Stay  in  con- 
demnation proceedings,  see  Id.  §§  3375,  3376. 

is  Code  Civ.  Proc.  §  1360. 

20  See  ante,  §  2650. 


2655  SECURITY  TO  STAY  PROCEEDINGS.  3743 


Art.  I.     Mode  of  Procuring. — A.   General   Rules. 


on  proof  that  an  undertaking  has  been  filed,  is  entitled  to  an 
order  staying  all  proceedings  to  enforce  such  judgment,  until 
the  granting  or  refusal  of  such  leave  to  appeal  by  such  appel- 
late division  or  a  judge  of  the  court  of  appeals.  The  party 
desiring  to  make  such  application  must  do  so  at  the  same  term 
or  at  the  term  of  said  appellate  division  next  succeeding 
that  at  which  judgment  of  affirmance  was  rendered  and 
notice  of  entry  thereof  served  on  the  party  aggrieved,  and 
in  case  said  appellate  division  refuses  said  application,  then 
such  party  shall  have  thirty  days  from  and  after  service  of  a 
copy  of  the  order  of  refusal,  with  notice  of  entry,  in  which  to 
apply  to  a  judge  of  the  court  of  appeals,  to  be  allowed  to  so 
appeal.21 

§  2655.     Power  of  court  to  limit  or  dispense  with  security. 

Where  an  appeal  is  taken  to  the  court  of  appeals  or  to  the 
appellate  division  from  an  order  or  judgment  of  the  supreme 
court,  the  court  in  or  from  which  the  appeal  is  taken,  or,  where 
an  appeal  is  taken  to  the  supreme  court  from  an  inferior  court, 
or  from  a  final  order  in  a  special  proceeding,  "the  court  to 
which  the  appeal  is  taken  may,  in  its  discretion,  make  an  order 
upon  notice  to  the  respondent  dispensing  with  or  limiting  the 
security  required  to  stay  the  execution  of  the  judgment  or 
order  appealed  from  as  follows : 

"1.  Where  the  appellant  is  an  executor,  administrator,  trus- 
tee, or  other  person  acting  in  another's  right,22  the  security 
may  be  dispensed  with  or  limited,  in  the  discretion  of  the 
court.23 

2i  Code  Civ.  Proc.  §  1310.  This  provision  was  added  by  amendment 
in  1898. 

22  The  committee  of  a  lunatic  who  is  sued  individually  and  as  a 
committee,  for  an  accounting,  is  not  acting  "in  another's  right"  where 
he  seeks  to  appeal  from  the  judgment  against  him  individually  and 
as  a  committee.     Butler  v.  Jarvis,  117  N.  Y.  115. 

23  a  want  of  assets  sufficient  to  pay  the  judgment  is  a  good  reason 
why  an  executor  should  be  allowed  to  give  an  undertaking  for  a  sum 
not  in  excess  of  the  amount  of  assets  disclosed  which  are  applicable 
to  the  payment  of  the  judgment  appealed  from.  Mills  v.  Forbes,  12 
How.  Pr.  466. 


3744  SECURITY  TO  STAY  PROCEEDINGS.  §  2656 

Art.   I.     Mode  of  Procuring. — A.  General  Rules. 

"2.  The  aggregate  sum  in  which  one  or  more  undertakings 
are  required  to  be  given  may  be  limited  to  not  less  than  $50,000, 
where  it  would  otherwise  exceed  that  sum."  24 

Subdivision  two  is  not  limited  to  a  case  where  the  appellant 
is  an  "executor,  administrator,  trustee,  or  other  person  acting 
in  another's  right."25 

This  Code  provision  does  not  authorize  the  dispensing  with 
an  undertaking  to  perfect  an  appeal  to  the  court  of  appeals 
but  relates  merely  to  the  security  required  to  stay  proceed- 
ings.20 

It  will  be  noticed  that  an  application  cannot  be  made  to  the 
court  of  appeals  though  the  appeal  is  to  that  court.27  In  the 
first  two  classes  of  appeals  enumerated,  the  application  must 
be  "to  the  court  in  or  from  which  the  appeal  is  taken;"  in 
the  last  two,  it  must  be  "to  the  court  to  which  the  appeal  is 
taken."  The  application  should  not  be  made  before  the  ap- 
peal is  perfected.28     The  Code  provision  is  not  mandatory. 

The  right  to  move  is  waived  by  depositing,  pursuant  to  stip- 
ulation, bonds  to  an  amount  less  than  the  amount  of  security 
required  by  the  Code.29 

§  2656.     Waiver  of  security. 

An  undertaking  which  the  appellant  is  required  to  give,  or 
any  other  act  which  he  is  required  to  do,  for  the  security  of 
the  respondent,  may  be  waived  by  the  written  consent  of  the 
respondent.30 

Form  of  waiver  of  security  on  appeal. 

[Title  of  cause.] 

The  giving  of  an  undertaking,  or  other  security,  by  the  appellant, 
on  the  appeal  to  the court  from  the  final  judgment  of  the 

24  Code  Civ.  Proc.  §  1312. 

2o  National  Contracting  Co.  v.  Hudson  River  "Water  Power  Co.,  47 
Misc.  491,  94  N.  Y.  Supp.  187. 

26  Architectural  Iron  Works  v.  City  of  Brooklyn,  85  N.  Y.  652. 

2T  Hills  v.  Peekskill  Sav.  Bank,  95  N.  Y.  675. 

28  National  Contracting  Co.  v.  Hudson  River  Water  Power  Co.,  47 
Misc.  491,  94  N.  Y.  Supp.  187. 

2oJesup  v.  Carnegie,  45  Super.  Ct.   (13  J.  &  S.)   310. 

so  Code  Civ.  Proc.  §  1305. 


§  2658  SECURITY  TO  STAY  PROCEEDINGS.  3745 

Art.  I.     Mode  of  Procuring. — B.   Security  Required  by  Code. 

court  in  the  above-entitled  action,  in  favor  of  against  , 

for  ,  is  hereby  waived,  and  the  proceedings  on  the  judgment 

appealed  from  are  stayed  without  such  undertaking  being  given. 
[Date.]     [Signature  and  office  address  of  respondent's  attorney.] 

§  2657.     Supplying  omissions. 

Where  the  appellant  omits,  through  mistake,  inadvertence, 
or  excusable  neglect,  to  do  any  act  necessary  to  stay  the  exe- 
cution of  the  judgment  or  order  appealed  from,  the  court,  in 
or  to  which  the  appeal  is  taken,  on  proof,  by  affidavit,  of  the 
facts,  may,  in  its  discretion,  permit  the  omission  to  be  supplied, 
or  an  amendment  to  be  made,  on  such  terms  as  justice  re- 
quires.31 

(B)   SECURITY  REQUIRED  BY   CODE. 

§  2658.     General  considerations. 

Sections  1327  to  1333  of  the  Code  fix  the  security  necessary 
to  stay  proceedings  on  appeal  to  the  court  of  appeals  from 
certain  specified  judgments  or  orders,  subject  to  the  general 
rules  relating  to  the  necessity  of  security  and  the  limiting  or 
dispensing  therewith.  On  an  appeal  from  a  judgment  or  order 
enumerated  in  either  of  said  Code  provisions,  no  order  to  stay 
proceedings  is  necessary,  but  the  giving  of  the  security  of  it- 
self effectuates  a  stay.  They  do  not,  however,  extend  to  a 
case  where  it  is  specially  prescribed  by  law  that  the  execution 
of  a  judgment  or  order  appealed  from  may  be  stayed,  without 
security,  or  where  the  security  to  be  given  is  specially  regu- 
lated by  law.32  I 

Though  these  provisions  are  contained  in  the  chapter  relat- 
ing to  appeals  to  the  court  of  appeals,  their  application  is  ex- 
tended by  the  Code  to  appeals  from  final  judgments  to  the  ap- 
pellate division33  and  to  the  supreme  court  from  an  inferior 
court.34     The  fact  is  to  be  kept  in  mind,  however,  that  if  the 

si  Code  Civ.  Proc.  §  1303. 

32  Code  Civ.  Proc.  §  1333. 

33  Code  Civ.  Proc.  §  1351. 

34  Code  Civ.  Proc.  §  1341. 

N.  Y.  Prac—  235. 


37±G  SECURITY  TO  STAY  PROCEEDINGS.  §  2659 


Art.  I.     Mode  of  Procuring. — B.   Security  Required  by  Code. 


appeal  is  to  the  appellate  division  from  a  judgment  of  the  su- 
preme court  the  undertakings  specified  in  this  division  must,  in 
addition  to  the  Code  requirements,  be  conditioned  to  pay  the 
costs  and  damages  of  the  appeal,  not  to  exceed  five  hundred 
dollars.35 

§  2659.     Appeal  from  judgment  for  the  recovery  of  money 
only. 

"If  the  appeal  is  taken  from  a  judgment  for  a  sum  of  money, 
or  from  a  judgment  or  order  directing  the  payment  of  a  sum 
of  money,  it  does  not  stay  the  execution  of  the  judgment  or 
order  until  the  appellant  gives  a  written  undertaking  to  the 
effect  that  if  the  judgment  or  order  appealed  from,  or  any  part 
thereof,  is  affirmed,  or  the  appeal  is  dismissed,  he  will  pay  the 
sum  recovered  or  directed  to  be  paid  by  the  judgment  or  order 
or  the  part  thereof  as  to  which  it  is  affirmed.  But  where  the 
judgment  or  order  directs  the  payment  of  money  in  fixed  in- 
stalments, the  undertaking  must  be  to  the  effect  that  the  ap- 
pellant will  pay  each  instalment  which  becomes  payable  pend- 
ing the  appeal,  or  the  part  thereof  as  to  which  the  judgment 
or  order  is  affirmed,  not  exceeding  a  sum  specified  in  the  un- 
dertaking, which  must  be  fixed  by  a  judge  of  the  court  below. 
The  court  below  may  at  any  time  afterwards,  upon  satisfactory 
proof,  by  affidavit,  that  the  sum  so  fixed  is  insufficient  in 
amount,  make  an  order  requiring  the  appellant  to  give  a 
further  undertaking,  to  the  same  effect,  in  a  sum  and  within  a 
time,  specified  in  the  order.  A  failure  to  comply  with  such  an 
order  has  the  same  effect  as  if  no  undertaking  has  been  given, 
.as  prescribed  in  this  section. ' ' 36 

This  Code  provision  applies  only  where  a  specific  or  certain 
Bum  of  money  is  directed  to  be  paid  or  recovered  by  the  judg- 
ment.37    In  other  words,   an  undertaking  given  pursuant  to 

35  Code  Civ.  Proc.  §  1352. 

so  Code  Civ.  Proc.  §  1327.  That  an  undertaking  given  under  this 
Code  provision  will  not  stay  the  operation  of  a  judgment  awarding  an 
injunction  and  damages,  see  post,  §  2693. 

37  Does  not  apply  to  judgment  directing  payment  of  sum  to  be  made 


§  2659 


SECURITY  TO  STAY  PROCEEDINGS.  3747 


Art.  I.     Mode  of  Procuring. — B.   Security  Required  by  Code. 


this  section  is  insufficient  as  a  stay  where  the  judgment  re- 
quires the  doing  of  acts  in  addition  to  the  payment  of  money.38 
For  instance,  this  provision  does  not  fix  the  security  that  may 
be  given  to  stay  proceedings  on  an  appeal  from  a  judgment 
granting  an  injunction  though  it  also  awards  damages.39  It 
does  not  apply  to  a  judgment  directing  the  payment  of  money 
out  of  a  fund  in  court,40  nor  to  a  foreclosure  judgment  for  a 
deficiency.41  But  a  judgment  of  affirmance  of  a  judgment  for 
the  recovery  of  money  only  is  within  this  provision.42 

An  undertaking  to  pay  the  sum  recovered  or  directed  to  be 
paid  by  the  "affirmance"  instead  of  by  the  "judgment  or 
order"  is  not  a  compliance  with  this  Code  provision.43 

New  undertaking.  Where  the  appeal  is  from  a  judg- 
ment or  order  directing  the  payment  of  a  sum  of  money  in 
fixed  instalments,  and  an  undertaking  is  given  to  stay  proceed- 
ings, pursuant  to  section  1327  of  the  Code,  the  court  below,  at 
any  time  afterwards,  on  satisfactory  proof,  by  affidavit,  that 
the  sum  fixed  in  the  original  undertaking  is  insufficient  in 
amount,  may  make  an  order  requiring  the  appellant  to  give  a 
further  undertaking  to  the  same  effect,  in  a  sum  and  within  a 
time  specified  in  the  order.  A  failure  to  comply  with  such  an 
order  has  the  same  effect  as  if  no  undertaking  has  been  given.44 

out  of  sale  of  land.  Knapp  v.  Van  Etten,  55  Hun,  428,  8  N.  Y.  Supp. 
415.  Judgment  in  action  to  set  aside  assignment  for  creditors  was 
held  within  this  provision  in  Durant  v.  Pierson,  19  Civ.  Proc.  R." 
(Browne)    203,  12  N.  Y.  Supp.  145. 

ssGalusha  v.  Galusha,  108  N.  Y.  114. 

so  Eno  v.  New  York  El.  R.  Co.,  15  App.  Div.  336,  44  N.  Y.  Supp.  61, 
following  Genet  v.  Delaware  &  Hudson  Canal  Co.,  113  N.  Y.  475. 

40  In  such  a  case  the  security  to  be  given  rests  in  the  sound  discre- 
tion of  the  court.  Curtis  v.  Leavitt,  1  Abb.  Pr.  274;  Steinback  v. 
Diepenbrock,  5  App.  Div.  208,  39  N.  Y.  Supp.  137.  Rule  was  otherwise 
in  chancery  and  under  old  Code  Id.,  followed  in  Dwyer  v.  Rorke,  8  App. 
Div.  617,  40  N.   Y.   Supp.  934. 

4i  Grow  v.  Garlock,  29  Hun,  598. 

42  McElroy  v.  Mumford,  128  N.  Y.  303,  311,  construing  Code  Civ. 
Proc.  §  1332. 

43  Hollister  v.  McNeill,  31  Hun,  629. 

44  Code  Civ.  Proc.  §  1327. 


374S  SECURITY  TO  STAY  PROCEEDINGS.  §  2061 

Art.  I.     Mode  of  Procuring. — B.   Security  Required  by  Code. 


§  2660.  Appeal  from  judgment  for  assignment  or  delivery  of 
personal  property. 

If  the  appeal  is  taken  from  a  judgment  or  order  directing 
the  assignment  or  delivery  of  a  document  or  of  personal  prop- 
erty, it  does  not  stay  the  execution  of  the  judgment  or  order 
until  the  thing  directed  to  be  assigned  or  delivered  is  brought 
into  the  court  below  or  placed  in  the  custody  of  an  officer  or 
receiver  designated  by  that  court,  or,  if  the  appeal  is  from  a 
judgment  for  the  recovery  of  a  chattel,  the  appellant  gives 
a  written  undertaking  in  a  sum  fixed  by  the  court  below,  or  a 
judge  thereof,  to  the  effect  that  the  appellant  will  obey  the  di- 
rection of  the  appellate  court,  on  the  appeal.45 

It  will  be  observed  that  it  is  optional  with  the  appellant 
whether  to  bring  the  chattel  into  court  to  be  placed  in  the 
custody  of  an  officer  or  to  give  the  undertaking. 

Where  defendant,  who  appeals  from  a  judgment  against  him, 
in  an  action  to  redeem  from  a  mortgage,  is  required  to  file  with 
the  clerk  a  discharge  of  the  mortgage  to  be  delivered  to  the 
plaintiff  in  case  of  affirmance,  the  latter  should  be  required  to 
pay  into  court,  the  sum  tendered,  in  case  defendant  does  not 
accept  it  for  the  ultimate  security  of  defendant.40 

The  decisions  construing  the  clause  relating  to  an  undertak- 
ing will  be  found  in  the  next  paragraph. 

§  2661.     Appeal  from  judgment  for  the  recovery  of  a  chattel. 

If  the  appeal  is  taken  from  a  judgment  for  the  recovery  of 
a  chattel,  it  does  not  stay  the  execution  of  the  judgment  until 
the  appellant  gives  a  written  undertaking,  in  a  sum  fixed  by 
the  court  below,  or  a  judge  thereof,  to  the  effect  that  the  ap- 
pellant will  obey  the  direction  of  the  appellate  court  on  the 
appeal.47 

45  Code  Civ.  Proc.  §  1328.  Judgment  directing  delivery  of  shares  of 
stock  is  within  this  Code  section.  Dady  v.  O'Rouke,  65  App.  Div.  465, 
72  N.  Y.  Supp.  827.  So  is  a  judgment  directing  payment  over  of 
money  in  the  hands  of  a  receiver.  Bank  of  Havana  v.  Moore,  8  Wkly. 
Dig.  198. 

*a  Simson  v.  Chadwick,  20  Wkly.  Dig.  35 

47  Code  Civ.  Proc.  §  1329.     Liability  where  common-law  undertaking 


§  2662  SECURITY  TO  STAY  PROCEEDINGS.  3749 

Art.  I.     Mode  of  Procuring. — B.   Security  Required  by  Code. 

The  stay  is  a  matter  of  right  and  the  granting  thereof  is  not 
discretionary.48  In  other  words,  the  judge  cannot  prevent  a 
stay  by  refusing  to  fix  the  amount  of  the  undertaking  at  any 
sum,  though  the  sum  to  be  fixed  is  a  matter  of  discretion.49 
An  approval  of  the  undertaking  by  the  court  is,  however, 
equivalent  to  a  fixing  of  the  amount  thereof.50 

Form  of  undertaking. 

[Title  of  cause.] 

Whereas,  on  the day  of ,  190—,  A.  X.,  the  above-named 

plaintiff,  recovered  a  judgment  in  the  court  against  B.  R.,  the 

above-named  defendant,  awarding  the  plaintiff  the  possession  of  cer- 
tain chattels,  with dollars  damages  and  costs; 

And  the  said  defendant,  feeling  aggrieved  thereby,  intends  to  appeal 
to  the court; 

And    the   court    (or   "Hon.    ,    a   judge   of   the   

court")  having  fixed  the  amount  of  the  undertaking  at dollars; 

Now,  therefore,  we,  A.  X,  [etc.,  as  in  preceding  forms  under  §  2642] 
do  hereby  jointly  and  severally  undertake,  in  the  sum  of  dol- 
lars, that  the  appellant  will  obey  the  direction  of  the  court  on 

this  appeal. 

[Date,  signature,  etc.,  as  in  preceding  forms  under  §  2642.] 

§  2662.    Appeal  from  a  judgment  directing  execution  of  in- 
strument. 

"If  the  appeal  is  taken  from  a  judgment  or  order,  directing 
the  execution  of  a  conveyance  or  other  instrument,  it  does  not 
stay  the  execution  of  the  judgment  or  order,  until  the  instru- 
ment is  executed,  and  deposited  with  the  clerk,  with  whom 
the  judgment  or  order  is  entered,  to  abide  the  direction  of  the 
appellate  court."  51 

is  given  instead  of  statutory  undertaking,  see  Goodwin  v.  Bunzl,  102 
N.  Y.  224. 

*s  Dady  v.  O'Rourke,  65  App.  Div.  465,  72  N.  Y.  Supp.  827. 

40  Dady  v.  O'Rourke,  65  App.  Div.  465,  72  N.  Y.  Supp.  827;  Monte- 
feiore  v.  Favilla,  63  How.  Pr.  386. 

soDunseith  v.  Linke,  10  Daly,  363.  So  held  though  no  sum  was 
stated  in  the  binding  part  of  the  undertaking.     Id. 

51  Code  Civ.  Proc.  §  1330;  Waring  v.  Ayres,  12  Abb.  Pr.  112;  Bank 
of  Havana  v.  Moore,  8  Wkly.  Dig.  198. 


3750  SECURITY  TO  STAY  PROCEEDINGS.  §  2663 

Art.  I.     Mode  of  Procuring. — B.   Security  Required  by  Code. 

1  his  Code  provision  lias  been  applied  where  a  judgment  in  a 
divorce  suit  awarded  alimony  to  be  secured  by  a  mortgage  on 
real  estate.62  Formerly,  it  applied  only  to  appeals  from  final 
judgments,63  but  now  it  applies  to  an  appeal  from  a  "judg- 
ment or  order." 


§  2663.    Appeal  from  judgment  for  sale,  or  delivery  of  posses- 
sion, of  real  property. 

If  the  judgment  or  order  (1)  directs  the  sale  or  the  delivery 
of  the  possession  of  real  property,  or  (2)  entitles  the  respond- 
ent to  the  immediate  possession  thereof,  an  appeal  does  not 
stay  the  execution  of  the  judgment  or  order,  until  the  appel- 
lant gives  a  written  undertaking  to  the  effect  that  he  will  not, 
while  in  possession  of  the  property,  commit,  or  suffer  to  be 
committed,  any  waste  thereon;  and  if  the  property  is  in  his 
possession  or  under  his  control,  the  undertaking  must  also  pro- 
vide that  if  the  judgment  or  order  is  affirmed  or  the  appeal  is 
dismissed,  and  there  is  a  deficiency  on  the  sale,  he  will  pay  the 
value  of  the  use  and  occupation  of  the  property,  or  the  part 
thereof,  as  to  which  the  judgment  or  order  is  affirmed,  from  the 
time  of  taking  the  appeal  until  the  delivery  of  the  possession 
thereof,  pursuant  to  the  judgment  or  order,  not  exceeding  a 
specified  sum  fixed  by  a  judge  of  the  court  below.  If  the  judg- 
ment directs  a  sale  of  real  property  on  the  foreclosure  of  a 
mortgage,  and  an  appeal  is  taken  by  a  party  against  whom 
payment  of  the  deficiency  is  awarded,  the  undertaking  must 
"also"  provide  that  if  the  judgment  is  affirmed  or  the  appeal 
is  dismissed,  the  appellant  will  pay  any  deficiency  which  may 
occur  on  the  sale,  with  interest  and  costs,  and  all  expenses 
chargeable  against  the  proceeds  of  the  sale,  not  exceeding  a 
sum  fixed  by  a  judge  of  the  court  below.54 

52  Galusha  v.  Galusha,  108  N.  Y.  114. 

53  Hatton  v.  McFaddin,  15  Civ.  Proc.  R.  (Browne)  42,  16  State  Rep. 
944,  2  N.  Y.  Supp.  194. 

54  Code  Civ.  Proc.  §  1331.  Liability  where  common-law  undertaking 
given  in  foreclosure  suit,  under  section  1327  of  the  Code,  see  Concor- 
dia Sav.  &  Aid  Ass'n  v.  Read,  124  N.  Y.  189.     Stay  does  not  exist  until 


§  2663  SECURITY  TO  STAY  PROCEEDINGS.  3751 

Art.  I.     Mode  of  Procuring. — B.   Security  Required  by  Code. 

This  Code  provision,  prior  to  its  amendment  in  1897,  was 
much  more  obscure  than  it  is  at  present.  Prior  to  such  amend- 
ment it  was  held  that  a  party  appealing  from  a  judgment  di- 
recting a  sale  on  foreclosure  of  a  mortgage  might  give  an  un- 
dertaking conditioned  either  against  waste  and  to  pay  for  use 
and  occupation,  or  to  pay  the  deficiency,  but  that  he  need  not 
give  both ; 55  but  now,  if  the  appellant  is  in  possession  and  a  de- 
ficiency judgment  is  awarded  against  him,  he  must  give  an  un- 
dertaking covering  waste,  use,  and  occupation,  and  deficiency. 
It  is  not  entirely  clear,  under  the  Code  provision  as  it  now 
stands,  as  to  when  an  undertaking  conditioned  merely 
against  waste  is  proper,  unless  it  is  when  the  appellant  is  not 
in  possession  at  the  time  of  taking  the  appeal.  If  he 
is  not  in  possession  and  is  held  liable  to  pay  any  deficiency 
judgment,  a  strict  reading  of  the  Code  provision  requires 
that  the  undertaking  be  conditioned  against  waste  and  to 
pay  any  deficiency,  though  it  has  been  said  that  in  such  a  case 
an  undertaking  conditioned  only  to  pay  such  deficiency  is  suf- 
ficient,56 and  a  common  sense  view  of  the  situation  would  seem 
to  support  such  holding. 

This  Code  provision  applies  only  to  those  cases  where  real 
estate  alone  is  the  subject-matter  affected  by  the  judgment.57 
It  does  not  apply  to  an  appeal  from  an  order  made  long  after 
a  judgment  of  foreclosure,58  nor  does  it  apply  to  a  judgment 
in  part  restraining  the  appellant  from  further  use  of  the  prem- 
ises.59 

a  perfected  appeal  has  been  taken.     Guilfoyle  v.  Pierce,  22  App.  Div. 
131,  47  N.  Y.  Supp.  899. 

ss  Grow  v.  Garlock,  29  Hun,  598,  approved  and  followed  in  Werner- 
v.  Tuch,  119  N.  Y.  632. 

se  Mutual  Life  Ins.  Co.  v.  Robinson,  23  Misc.  563,  52  N.  Y.  Supp.  795. 

5T  Does  not  apply  where  the  sale  of  both  real  and  personal  property 
is  directed  by  the  judgment  appealed  from.  New  York  Security  j& 
Trust  Co.  v.  Saratoga  Gas  &  Electric  Light  Co.,  5  App.  Div.  535,  39  N. 
Y.  Supp.  486. 

ss  Appeal  from  order  directing  a  resale  of  premises  sold  under  a 
mortgage  foreclosure.  Stephens  v.  Humphries,  49  State  Rep.  782,  20 
N.  Y.  Supp.  812. 

so  Troy  &  B.  R.  Co.  v.  Boston  &  H.  I.  &  W.  R.  Co.,  57  How.  Pr.  181. 


3752  SECURITY   TO  STAY  PROCEEDINGS.  §  2663 

l.     Mode    m    Procuring. — B.  Security  Required  bj   Code. 


Aii  undertaking,  on  appeal  to  the  appellate  division,  condi- 
tional that  "during  the  possession  of  such  property  by  the  ap- 
pellant he  will  not  commit  or  suffer  to  be  committed  any 
waste  thereon,"  extends  to  waste  committed  pending  a  subse- 
quent appeal  to  the  court  of  appeals.00 

An  application  to  fix  the  amount  of  the  security  is  proper 
only  where  the  appellant  is  in  possession  of  the  realty  affected 
by  the  judgment  appealed  from,61  or  where  a  judgment  of  de- 
li eiency  is  awarded  by  the  judgment  against  the  party  apply- 
ing.02 The  application  should  be  based  on  affidavits  showing 
the  condition  of  the  cause,  the  condition  and  value  of  the 
property,  the  rental  value,  etc.  The  liability  is  limited  to  the 
amount  specified  by  the  judge  of  the  court  from  which  the  ap- 
peal is  taken.63 

It  has  been  held  that  if  a  party  is  one  not  enumerated  in  any 
of  the  subdivisions  of  this  Code  section,  he  must  apply  to  the 
court  or  a  judge  for  a  stay,64  but  a  strict  reading,  as  heretofore 
said,  would  seem  to  embrace  within  its  provisions  all  classes 
of  parties,  whether  or  not  in  possession. 

Form  of  undertaking. 

[Title  of  cause.] 

"Whereas,  on  the  day  of  ,  190 — ,  in  the  court, 

A.  X.,  the  above-named  plaintiff,  recovered  a  judgment  against  B.  Z., 

the  above-named  defendant,  for  [state  relief  granted  so  as  to 

bring  case  within  Code  provision] ;  65 

And  the  said  defendant  feeling  aggrieved  thereby  intends  to  appeal 
to  the  court; 

Now,  therefore,  we,  C.  Y.  [merchant],  residing  at  No.  street 

in  the  city  of  ,  and  D.  G.   [farmer]   residing  at  <■ ,  hereby 

so  Church  v.  Simmons,  83  N.  Y.  261. 

6i  Commercial  Bank  v.  Foltz,  35  App.  Div.  237,  54  N.  Y.  Supp.  764. 

62  Rosenbaum  v.  Tobler,  31  App.  Div.  312,  53  N.  Y.  Supp.  722. 

63  Hoag  v.  Prime,  24  State  Rep.  476,  5  N.  Y.  Supp.  502. 

64  Purchasers  subsequent  to  the  mortgage,  not  in  possession,  are  not 
within  this  Code  provision,  but  may  be  granted  a  stay,  on  furnishing 
the  same  security  as  required  if  they  were  in  possession.  Mutual  Life 
Ins.  Co.  v.  Robinson,  23  Misc.  563,  52  N.  Y.  Supp.  795. 

«5  If  the  undertaking  is  given  in  a  mortgage  foreclosure  suit  it  is 
sufficient  to  merely  state  "for  the  foreclosure  and  sale  of  real  property 


§  2664  SECURITY  TO  STAY  PROCEEDINGS.  3753 

Art.  I.     Mode  of  Procuring.— B.   Security  Required  by  Code. 

jointly  and  severally  undertake  that  the  appellant  will  not,  while  in 
possession  of  such  real  property,  commit,  or  suffer  to  be  committed, 
any  waste  thereon;  and  that  if  the  judgment  appealed  from  be  af- 
firmed, or  the  appeal  be  dismissed,  the  said  appellant  will  pay  the 
value  of  the  use  and  occupation  of  said  property,  or  the  part  thereof 
as  to  which  said  judgment  shall  be  affirmed,  from  the  time  of  taking 
said  appeal  until  the  delivery  of  the  possession  thereof  pursuant  to  said 

judgment,  not  exceeding  the  sum  of  dollars;    [and  also  that  if 

the  judgment  appealed  from  be  affirmed,  or  the  appeal  be  dismissed, 
the  said  appellant  will  pay  any  deficiency  which  may  occur  on  the 
sale  in  discharging  the  sum  to  pay  which  the  sale  is  directed,  with  in- 
terest, and  the  costs,  and  all  expenses  chargeable  against  the  proceeds 

of  the  sale,  not  exceeding  the  sum  of dollars]  .CG 

[Date,  signature,  etc.,  as  in  preceding  forms.] 


§  2664.     Appeal  from  judgment  of  affirmance. 

Where  the  judgment  or  order,  from  which  an  appeal  is  taken 
to  the  court  of  appeals,  affirms  a  judgment  or  order  specified 
in  either  of  sections  1327  to  1331,  inclusive,  of  the  Code,  the 
undertaking  must  be  the  same  as  if  the  judgment  or  order  from 
which  the  appeal  is  so  taken  was  to  the  same  effect  as  the  judg- 
ment or  order  affirmed.67 

To  clearly  understand  this  Code  provision  it  is  necessary 
to  refer  to  the  last  sentence  in  section  1317  of  the  Code  which 
provides  that  "a  judgment,  affirming  wholly  or  partly  a  judg- 
ment, from  which  an  appeal  has  been  taken,  shall  not,  ex- 
pressly and  in  terms,  award  to  the  respondent,  a  sum  of  money, 
or  other  relief,  which  was  awarded  to  him  by  the  judgment  so 
affirmed."  Now  if  the  first  mentioned  provision  was  not  con- 
tained in  the  Code  a  question  might  arise,  when  an  appeal  is 
taken  to  the  court  of  appeals,  as  to  whether  the  judgment  ap- 

mortgaged."  If  given  in  an  ejectment  action,  it  is  sufficient  to  state 
that  the  judgment  is  for  "the  delivery  to  plaintiff  of  immediate  pos- 
session of  the  property  described  in  said  judgment." 

^e  The  matter  in  brackets  is  necessary  only  where  the  undertaking 
is  given  to  stay  a  sale  under  a  mortgage  foreclosure,  in  behalf  of  a 
party  required  by  the  judgment  to  pay  any  deficiency. 

C7  Code  Civ.  Proc.  §  1332.  This  Code  provision  was  framed  in  ac- 
cordance with  Hinckley  v.  Kreitz,  58  N.  Y.  583. 


3754  SECURITY  TO  STAY  PROCEEDINGS.  g  2665 

Art.  I.     Mode  of  Procuring. — B.   Security  Required  by  Code. 

pealed  from  is  one  of  the  judgments  mentioned  in  sections  1327 
to  lool  of  the  Code.  In  other  words,  a  judgment  of  affirmance, 
not  awarding  any  relief,  is  not,  except  by  virtue  of  this  Code 
provision,  necessarily  a  judgment  for  the  recovery  of  money 
only,  or  for  the  recovery  of  a  chattel,  or  for  the  sale  or  posses- 
sion of  real  property,  because  the  judgment  of  the  trial  court  is 
such  a  judgment.  To  illustrate:  under  this  provision,  if  the 
judgment  affirmed  required  the  payment  of  money,  the  order 
of  affirmance  must  be  treated  as  though  it  had  directed  the 
payment  of  the  same  sum  as  that  provided  for  by  the  original 
judgment,  and  an  undertaking  given  on  appeal  from  the  judg- 
ment of  affirmance  will  have  the  same  effect  as  though  the 
judgment  of  affirmance  had  expressly  directed  the  payment  of 
the  sum  included  in  the  original  judgment.68 

§  2665.     Appeal  from  judgment  for  specific  performance  or 
setting  aside  conveyance. 

When  the  appeal  is  from  a  judgment  in  favor  of  the  owner 
of  real  estate,  in  an  action  to  set  aside  the  conveyance  thereof, 
or  to  compel  the  specific  performance  of  a  contract  for  the  sale 
thereof,  such  owner  shall  have  the  same  right  to  sell  or  dispose 
of  the  same  as  though  no  appeal  had  been  taken,  unless  the  ap- 
l-iellant  shall  file  with  the  clerk  of  the  court  a  written  under- 
taking, in  a  sum  fixed  by  the  court  or  a  judge  thereof,  upon 
a  notice  to  the  respondent  of  at  least  ten  days,  and  to  be  ap- 
proved by  such  court  or  judge,  to  the  effect  that  the  appellant 
will,  in  case  the  judgment  appealed  from  shall  be  affirmed,  pay 
to  such  owner  such  damages  as  he  may  suffer  by  reason  of  such 
appeal,  not  exceeding  the  amount  of  the  penalty  in  such  under- 
taking. Such  undertaking  may*  be  filed  at  any  time  during 
the  appeal,  but  any  sale  of  such  real  estate  or  contract  to  sell 
the  same  in  good  faith  and  for  a  valuable  consideration,  after 
said  judgment  and  before  the  filing  of  such  undertaking,  shall 
be  as  valid  as  if 'such  undertaking  had  not  been  filed.  In  case 
such  undertaking  shall  not  be  filed,  the  respondent  shall  be  en- 
titled, at  any  time  during  such  appeal,  to  an  order  discharging 

68  McElroy  v.  Mumford,  128  N.  Y.  303,  310. 


ft  2667  SECURITY  TO  STAY  PROCEEDINGS.  3755 


Art.  I.     Mode  of  Procuring. — C.  Order  Granting  Stay. 

of  record  any  notice  of  pendency  of  action  filed  in  the  action, 
and  also  canceling  and  discharging  of  record  said  contract, 
in  case  the  same  has  been  recorded.00 

(C)   ORDER  GRANTING  STAY. 

§  2666.     Necessity. 

In  some  cases,  as  already  noticed,  a  stay  may  be  obtained 
by  merely  giving  an  undertaking,  but  in  cases  where  no 
special  provision  is  made  by  the  Code  for  a  particular  kind  of 
undertaking,  it  is  not  sufficient  to  merely  give  an  undertaking 
but  it  is  necessary  to  obtain  an  order  granting  a  stay.70  Merely 
giving  an  undertaking,  without  an  order  of  court  directing  a 
stay,  does  not  operate  as  a  stay,  ' '  except  where  it  is  otherwise 
specially  prescribed  by  law. ' ' 71 

A  stay  cannot  be  obtained  in  an  action  for  dower  unless  the 
court  or  a  judge  thereof  grants  an  order  directing  a  stay,  and 
the  respondent  may  prevent  the  granting  of  the  order  by 
giving  an  undertaking.72 

§  2667.     Power  of  court  or  judge. 

The  Code  does  not  abridge  the  power  of  the  court  over  its 
own  judgments,  to  stay  proceedings  on  them  for  such  time  and 
on  such  terms  as  to  the  court  seems  proper.7-'  In  other  words, 
the  fact  that  the  Code  secures  to  the  appellant  in  a  certain 
class  of  actions  the  right  to  a  stay,  on  giving  an  undertaking, 
and  has  omitted  to  secure  a  similar  right  in  other  actions,  does 
not  preclude  the  right  of  the  court  or  a  judge  to  grant  such  a 

so  Code  Civ.  Proc.  §  1323.  In  1899  this  provision  was  amended  to 
include  actions  to  set  aside  a  conveyance  of  real  estate. 

to  Taft  v.  Marsily,  14  Civ.  Proc.  R  (Browne)  415,  1  N.  Y.  446.  Stay 
may  be  granted  on  appeal  from  an  interlocutory  order  in  a  special  pro- 
ceeding, where  it  affects  a  substantial  right.  Manhattan  R.  Co.  v. 
O'Sullivan,  16  Misc.  150,  37  N.  Y.   Supp.   1063. 

"i  For  instance,  an  undertaking  is  not,  of  itself,  a  stay,  on  an  appeal 
from  an  order  denying  a  new  trial  on  the  judge's  minutes.  Carter  v. 
Hodge,  150  N.  Y.  532. 

"  See  Code  Civ.  Proc.  §  1616. 

73  Granger  v.  Craig,  85  N.  Y.  619.  Discretion  is  not  reviewable  un- 
less abused. 


3756  SECURITY  TO  STAY  PROCEEDINGS.  §  2668 

Art.    1.     -Mode  of  Procuring. — C.  Order  Granting  Stay. 

slay,  in  the  exercise  of  inherent,  power.74  And  the  trial  court 
may  go  further  than  to  merely  order  a  stay  of  proceedings  in 
behalf  of  the  successful  party,  by  suspending  the  operation  of 
the  judgment,  where  a  mere  stay  would  not  be  effectual,  as 
where  the  judgment  grants  an  injunction.75  But  while,  in 
such  a  case,  the  special  term  has  "power,"  on  motion,  to  "sus- 
pend the  operation"  of  its  judgment  pending  an  appeal,76  and 
the  appellate  division,  on  appeal  from  the  order,  may  review 
the  exercise  of  the  discretion  as  to  the  propriety  of  the  stay,77 
yet  a  comparatively  recent  case  holds  that  the  better  practice 
is  to  make  the  motion  in  the  appellate  division.78 

A  special  term  has  power  to  grant  a  stay,  pending  an  appeal 
to  the  court  of  appeals,  on  condition  that  appellant  give  an  ad- 
ditional bond.70 

A  judge  out  of  court  has  power  to  order  a  stay,so  and  this 
is  so  although  an  appeal  has  been  taken  to  the  court  of  ap- 
peals.81 

As  already  stated,  the  appellate  division  "may  grant  a  stay 
of  proceedings  upon  any  judgment  or  order  of  the  supreme 
court  from  which  an  appeal  is  pending. ' ' 82 

The  stay  may  be  granted  at  any  time  pending  the  appeal.83 

§  2668.    Motion  papers. 

The  motion  may  be  made  ex  parte. S4  The  affidavits  should 
show  the  nature  of  the  action,  the  condition  of  the  action,  the 

74  Mutual  Life  Ins.  Co.  v.  Robinson,  23  Misc.  563,  52  N.  Y.  Supp.  795. 

'■>  Genet  v.  Delaware  &  Hudson  Canal  Co.,  113  N.  Y.  472. 

™  Genet  v.  Delaware  &  Hudson  Canal  Co.,  113  N.  Y.  475.  Especially 
is  this  so  where,  by  so  doing,  the  parties  are  left  in  the  position  which 
they  were  when  the  action  was  brought.  Id.,  followed  in  Eno  v.  New 
York  El.  R.  Co.,  15  App.  Div.  336,  44  N.  Y.  Supp.  61. 

"  Genet  v.  Delaware  &  Hudson  Canal  Co.,  113  N.  Y.  475. 

ts  Eno  v.  New  York  El.  R.  Co.,  15  App.  Div.  336,  44  N.  Y.  Supp.  61. 

78  Kager  v.  Brenneman,  52  App.  Div.  446,  65  N  Y.  Supp.  129. 

so  Code  Civ.  Proc.  §  775;  Mutual  Life  Ins.  Co.  v.  Robinson,  23  Misc. 
563,  52  N.  Y.  Supp.  795. 

si  Laney  v.  Rochester  R.  Co.,  81  Hun,  346,  30  N.  Y.  Supp.  893. 

82  Code  Civ.  Proc.  §  1348. 

83  Culver  v.  Hollister,  29  How.  Pr.  479. 
^  Code  Civ.  Proc.  §  775. 


§  2669  SECURITY  TO  STAY  PROCEEDINGS.  3757 

Art.  I.     Mode  of  Procuring. — C.  Order  Granting  Stay. 

taking  of  an  appeal,  and  any  other  facts  pertinent  to  a  deter- 
mination as  to  the  conditions  on  which  a  stay  should  be 
granted.  The  report  or  decision,  with  the  exceptions  thereto, 
if  the  action  was  tried  without  a  jury,  and  the  case,  if  one  has 
been  made,  should  be  presented,  in  order  that  it  may  be  seen 
whether  there  is  probable  cause  for  review.85  An  order  to  show 
cause  is  properly  made  if  there  is  a  question  as  to  whether  any 
stay  at  all  should  be  granted. 

Form   of  affidavit. 

[Title  of  cause.] 
[Venue.] 
A.  X.,  being  duly  sworn,  says: 

I.  That  he  is . 

II.  That  the  above-entitled  action  was  brought  to  [state  nature  of 
action] . 

III.  [State  condition  of  action.] 

IV.  That  an  appeal  has  been  taken  [or  "Is  about  to  be  taken"]  by 

from  a  judgment  of  the  ■   court,   entered  in  the  

county  clerk's  office,  on  the  day  of  ,  190 — ,  in  favor  of 

against  for  [or  "an  order  of  the  court, 

made  at  a term  thereof,  on  the  day  of ,  190 — ,  di- 
recting that  "]. 

V.  That  deponent  will  suffer  serious  inconvenience  and  loss  if  the 
execution  of  said  judgment  [or  "order"]  is  not  stayed  until  the  de- 
cision of  said  appeal,  for  the  following  reasons,  viz:  . 

[Jurat.]  [Signature.] 

§  2669.     Propriety  of  granting  of  stay. 

"Whether  a  stay  shall  be  granted  is  a  matter  of  discretion,86 
though  ordinarily  the  motion  is  granted  as  of  course  and  the 
only  question  is  as  to  the  terms  to  be  imposed.  It  would  seem, 
however,  that  where  a  stay  can  be  granted  without  an  order 
by  giving  an  undertaking,  a  stay  will  not  be  granted  by  order 
where  no  circumstances  exist  which  call  for  a  different  under- 
taking from  that  required  by  the  statute.87  If  a  stay  is  granted, 

85  Otis  v.  Spencer,  8  How.  Pr.  171. 

se  Coleman  v.  Phelps,  24  Hun,  320;  Wilson  v.  Grant,  59  How.  Pr.  350. 
87  So  held  where  judgment  was  for  costs.     Campbell  &  Thayer  Co. 
v.  Frost,  24  Misc.  87,  52  N.  Y.  Supp.  487. 


3758  SECURITY  TO  STAY  PROCEEDINGS.  §  2669 

Art.  I.     Mode  of  Procuring-. — C.  Order  Granting  Stay. 

in  such  a  case,  the  terms  of  the  undertaking  are  usually  re- 
quired to  correspond  closely  to  those  in  a  like  action  where 
the  undertaking  is  given  without  an  order,  in  the  absence  of 
special  circumstances.  A  stay  will  not  be  granted  on  an  ap- 
peal to  the  court  of  appeals  where  it  can  be  obtained  by  simply 
giving  security. 

A  stay  is  properly  refused  where  it  clearly  appears  that 
there  is  no  merit  in  the  appeal,  as  where  it  is  shown  to  be  taken 
solely  for  delay.88  In  short,  a  stay  will  not  be  granted  where 
there  is  no  necessity  therefor  because,  on  the  face  of  the  mov- 
ing papers,  the  appeal  must  be  fruitless.81'  And  if  the  complaint 
is  dismissed  in  an  action  to  restrain  the  foreclosure  of  a  mortg- 
age, a  motion  for  a  stay  of  proceedings  pending  an  appeal 
therefrom  will  not  be  granted,  since  in  effect,  a  stay  would 
grant  an  injunction  pending  appeal  which  injunction  was  de- 
nied by  the  judgment.90  So  a  stay  of  proceedings  will  not  be 
granted  where  several  years  have  elapsed  since  the  rendition 
and  entry  of  the  judgment,  of  which  the  moving  party  had 
knowledge,  and  where  he  has  not  taken  an  appeal.01  So  a 
stay  should  not  be  granted  where  the  party  whom  it  is  sought 
to  stay  has  no  interest  in  the  question  involved  in  the  order 
appealed  from.92 

Where  an  order  grants  a  new  trial  unless  plaintiff  stipulates 
within  twenty  days  to  reduce  the  verdict  to  a  specified  sum, 
and  both  parties  appeal  from  the  order,  it  is  proper  to  grant  to 
plaintiff  a  stay  of  proceedings  and  an  extension  of  the  time  to 
stipulate  to  twenty  days  after  the  determination  of  the  ap- 
peal.93 

88  Emigrant  Mission  Committee  v.  Brooklyn  El.  R.  Co.,  40  App.  Div. 
611,  57  N.  Y.  Supp.  624. 

so  Connolly  v.  Manhattan  R.  Co.,  7  App.  Div.  610,  40  N.  Y.  Supp.  1007. 

so  Pocantico  Water  Works  Co.  v.  Low,  21  Misc.  172,  47  N.  Y.  Supp. 
72.  To  same  effect,  Campbell  &  Thayer  Co.  v.  Frost,  24  Misc.  87,  52 
N.  Y.  Supp.  487. 

9i  Bauer  v.  Parker,  47  App.  Div.  623,  61  N.  Y.  Supp.  1023. 

92  People  v.  Alker,  12  Hun,  88. 

93  Cullen  v.  William  E.  Uptegrove  &  Bros.,  101  App.  Div.  147,  34  Civ. 
Proc.  R.  181,  91  N.  Y.  Supp.  511. 


ft  2070  SECURITY  TO  STAY  PROCEEDINGS.  3759 

Art.  I.     Mode  of  Procuring-. — C.  Order  Granting  Stay. 

§  2670.     Order. 

The  Code  provides  that  where  a  motion  is  made  for  a  stay  on 
an  appeal  to  the  supreme  court  from  an  order  of  an  inferior 
court,94  or  on  an  appeal  to  the  appellate  division  from  a  judg- 
ment or  order  of  the  supreme  court,95  the  order  may  direct  such 
a  stay,  on  such  terms,  as  to  security  or  otherwise,  as  justice 
requires.  The  inherent  power  to  order  a  stay  in  other  cases 
would  seem  to  be  as  broad  as  the  power  conferred  by  these 
Code  sections.  But  while  the  court  has  "power"  to  stay  the 
proceedings  without  security,  such  power  should  not  be  exer- 
cised except  where  called  for  by  the  circumstances  of  the 
case.96  A  stay  without  security  may  be  ordered  where  the  ap- 
pellant is  the  owner  of  fixed  property  amply  sufficient  to  pay 
or  otherwise  perform  the  judgment  if  affirmed.07  Even  if  se- 
curity is  not  required  as  a  condition  of  granting  a  stay  on  an 
appeal  to  the  appellate  division  from  a  judgment  or  order  of 
the  supreme  court,  it  may  be  required  afterward,  in  a  proper 
case.98 

If  security  is  required,  it  should  be  such  as  necessary  to  pro- 
tect respondent's  interests.09 

Granting  a  stay  on  appeal  from  a  judgment  for  foreclosure, 
on  condition  that  defendant  waive  his  defense  of  tender,  is  an 
abuse  of  discretion.100 

An  order  granting  a  stay,  pending  an  appeal  to  the  court 
of  appeals,  is  too  broad  where  it  contains  no  provision  for  the 
termination  of  the  stay  if  an  appeal  should  not  be  taken  or  if 
the  judgment  should  be  affirmed  by  the  court  of  appeals.101 

s*  Code  Civ.  Proc.  §  1343. 

f>5  Code  Civ.  Proc.  §§  1351,  1360. 

96  Sternbach  v.  Friedman,  29  App.  Div.  480,  51  N.  Y.  Supp.  1068;  OtU 
v.  Spencer,  8  How.  Pr.  171.  See,  also,  Christy  v.  Libby,  3  Abb.  Pr.  (N. 
S.)  423;  Clark  v.  Brooks,  2  Abb.  Pr.  (N.  S.)  385;  People  v.  Nolan,  63 
How.  Pr.  373. 

97  Polhamus  v.  Moser,  30  N.  Y.  Super.  Ct.  (7  Rob.)  443. 

98  Code  Civ.  Proc.  §  1351. 

99  Taft  v.  Marsily,  14  Civ.  Proc.  R.  (Browne)  415. 
ioo  Waring  v.  Somborn,  12  Hun,  81. 

mi  Kager  v.  Brenneman,  52  App.  Div.  446,  65  N.  Y.   Supp.  129. 


3760  SECURITY  TO  STAY  PROCEEDINGS.  §  2670 

Art.  I.     Mode  of  Procuring. — C.  Order  Granting  Stay. 


Execution  of  a  judgment  for  the  recovery  of  money  only,  on 
an  appeal  to  the  appellate  division,  shall  not  he  stayed,  without 
security,  for  more  than  thirty  days  after  the  service  on  the 
attorney  for  the  appellant  of  a  copy  of  the  judgment  and  writ- 
ten notice  of  the  entry  thereof.' "- 

Form  of  order. 

[Title  of  cause.]  At  a  term,  etc. 

On   reading   and    filing   the   affidavit   of  ,   dated   ,   with 

proof  of  due  service  thereof,  and  of  notice  of  this  motion,  on  , 

and   on   reading   and   filing    [name   any   opposing   papers];    and    after 

hearing  ,   attorney  for  ,   in   support  of  said  motion,   and 

,  attorney  for  ,  in  opposition  thereto;   now  on  motion  of 

,  attorney  for  : 

It  is  hereby  ordered  that  the  execution  of  the  judgment  of  the 

court,   entered    on    the   day    of   ,    190 — ,    in   the   

county  clerk's  office  [or  "that  the  execution  of  the  order  of  the 

court,  made  at  a  term  thereof,  held  at  ,  on  the  

day  of  ,  190 — ,],  be,  and  the  same  hereby  is,  stayed  until  the 

decision   of   the   appeal   taken   therefrom   to   the  court  by   the 

said  (  on  the  said  appellant  filing  with  the  clerk  of  the  county 

of  an  undertaking  conditioned  to  [state  terms  of  undertaking], 

and  on  [state  other  terms  on  which  stay  is  granted.] 

Form  of  undertaking  given   pursuant  to  order  granting  a  stay. 

[Title  of  cause.] 

Whereas,  on  the  day  of  ,   190—,   a  judgment  of  the 

court,  in  the  above  action,  in  favor  of  against  , 

for ,  was  entered  in  the  office  of  the  clerk  of county.  [Or 

"an  order  was  made  and  entered,  by  the  court,  in  the  above 

action,  requiring  ]. 

And  the  said  ,  feeling  aggrieved  thereby,  has  appealed  there- 
from [or  "intends  to  appeal  therefrom"]  to  the court; 

And  the  court  having  made  an  order,  dated  ,  that  the 

execution  of  said  judgment  [or  "order"]  be  stayed  until  the  decision 
of  the  said  appeal,  on  the  execution  of  an  undertaking,  on  the  part  of 
the  said  ,  with  sureties,  conditioned  as  provided  in  said  order: 

Now,  therefore,  we  [continue  as  in  preceding  forms  but  closely  fol- 
low the  order  as  to  the  condition  of  the  undertaking]. 

i^Code  Civ.  Proc.  §  1351.  Added  by  amendment  by  Laws  1903,  c. 
238. 


8  2671  SECURITY  TO  STAY  PROCEEDINGS.  3761 

Art.  II.     General  Rules  as  to  Undertaking. 


Retroactive  effect.     Where  the  amount  of  a  judgment 

is  paid  to  the  creditor  who  deposits  it  in  a  bank,  after  the  af- 
firmance of  the  judgment  by  the  appellate  division  and  pend- 
ing an  application  to  a  judge  of  the  court  of  appeals  for  leave 
to  appeal  to  the  court  of  appeals,  an  order  cannot  thereafter 
be  made  restraining  the  judgment  creditor  and  his  attorney 
from  drawing  out,  and  the  bank  from  paying,  an  amount  equal 
to  the  sum  deposited.103 

ART.  II.  GENERAL  RULES  AS  TO  THE  UNDERTAKING. 

§  2671.     Form  and  contents. 

Having  already  considered  the  necessary  statements  in  par- 
ticular undertakings,104  as  fixed  by  the  Code  provisions,  refer- 
ence will  now  be  made  to  the  rules  which  apply  generally  as  to 
the  form  and  contents  of  undertakings  on  appeal. 

The  undertaking  must  be  joint  and  several  in  form.105  The 
obligee  should  be  named,100  and  the  residence  of  each  surety 
should  be  stated,107  together  with  his  or  her  occupation.  The 
order,  if  any,  staying  proceedings,  should  be  distinctly  re- 
ferred to.  A  seal  is  not  necessary  and  no  consideration  need 
be  stated,10S  unless  the  undertaking  is  merely  a  common-law 
undertaking  in  which  case  a  seal  should  be  used  which  will 
import  a  consideration. 

The  only  object  of  describing  the  judgment  in  the  undertak- 
ing is  to  enable  it  to  be  identified  as  the  subject  of  the  instru- 

103  Klinker  v.  Third  Ave.  R.  Co.,  33  App.  Div.  556,  53  N.  Y.  Supp. 
1012. 

104  See  ante,  §§  2658-2664. 

io5  Vol.  1,  p.  674.  Underaking  construed  as  creating  joint  and  se- 
veral liability,  see  Donovan  v.  Clark,  76  Hun,  339,  27  N.  Y.  Supp.  686. 
See  Wood  v.  Fisk,  63  N.  Y.  245,  where  undertaking  construed  as  a  joint 
obligation.  "Joint"  obligation,  where  accepted  by  obligee,  is  not 
"void."    Denike  v.  Denike,  61  App.  Div.  492,  70  N.  Y.  Supp.  629. 

ice  See  Titus  v.  Fairchild,  49  Super.  Ct.  (17  J.  &  S.)  211. 

107  Code  Civ.  Proc.  §  1334. 

losGein  v.  Little,  43  Misc.  421,  89  N.  Y.  Supp.  488;  Thompson  v. 
Blanchard,  3  N.  Y.  (3  Comst.)  335;  Post  v.  Doremus,  60  N.  Y.  371. 

N.  Y.  Prac—  236. 


3762  SECURITY  TO  STAY  PROCEEDINGS.  §  2671 

Art.  II.     General  Rules  as  to  Undertaking. 

ment.109  The  undertaking  should  recite  the  judgment  ap- 
pealed from  so  that  it  will  appear  whether  the  justification  of 
the  sureties  is  sufficient.110  Failure  to  fully  describe  the  judg- 
ment in  the  undertaking,  where  the  intention  to  appeal  from 
the  entire  judgment  is  clearly  evidenced  by  the  notice  of  ap- 
peal, as  is  the  intention  to  secure  a  stay  on  the  entire  judg- 
ment, will  not  limit  the  liability  to  the  part  of  the  judgment 
described  in  the  undertaking.111  On  appeal  to  the  court  of 
appeals,  the  undertaking  must  secure  the  original  judgment 
or  order  and  not  the  judgment  or  order  appealed  from.112 

In  certain  cases,  if  the  adverse  party  has  died  before  the  tak- 
ing of  the  appeal,  the  undertaking  must  recite  such  fact.113 

Stating  that  appellant  "intends"  to  appeal  does  not  render 
the  undertaking  invalid  as  showing  that  the  undertaking  was 
executed  before  the  appeal  was  taken.114 

Affidavits  of  sureties.  The  rules  laid  down  in  a  pre- 
ceding volume  115  apply.116 

Acknowledgment   and   certification.     The   rules    apply 

which  are  set  forth  in  a  preceding  volume.  117 

One  or  more  instruments.  Where  two  or  more  under- 
takings are  required  to  be  given,  they  may  be  contained  in  the 
same  instrument,  or  in  different  instruments,  at  the  option  of 
the  appellant.1151     This  authorizes  an  undertaking  to  perfect 

loo  Undertaking  describing  judgment  appealed  from  as  entered  on 
one  day  when  in  fact  it  was  entered  the  following  day,  may  be  disre- 
garded.    Dinkel  v.  Wehle,  61  How.  Pr.  159. 

no  Pay  v.  Lynch.  5  Monthly  Law  Bui.  57. 

in  So  held  where  judgment  for  "costs  of  affirmance"  was  referred  to 
instead  of  judgment  for  damages  and  costs.  McElroy  v.  Mumford,  128 
N.  Y.  303. 

ii2Briggs  v.  Brown,  13  Abb.  N.  C.  481;  King  v.  Post,  12  State  Rep. 
575. 

us  See  ante,  §  2594. 

ii*  Forrest  v.  Havens,  38  N.  Y.  469. 

us  Vol.  1,  p.  676. 

no  Affidavit  of  sureties  may  be  waived  by  respondent.  Gibbons  v. 
Berhard,  16  Super.  Ct.  (3  Bosw.)  635.  Affidavit  may,  it  seems,  ibe 
permitted  to  be  filed  on  motion  to  dismiss  appeal.     Id. 

ii?  Vol.  1,  p.  679. 

us  Code  Civ.  Proc.  §  1334. 


§  2673  SECURITY  TO  STAY  PROCEEDINGS.  3763 

Art.  II.     General  Rules  as  to  Undertaking. 

the  appeal  and  a  separate  undertaking  to  stay  proceedings,  on 
an  appeal  to  the  court  of  appeals,  or  instead  one  undertaking 
accomplishing  both  purposes. 

It  would  seem  that  the  chancery  rule  is  still  in  force  that 
where  two  or  more  have  a  common  interest  in  resisting  a  re- 
versal or  modification  of  the  judgment,  a  joint  undertaking 
is  sufficient,  and  that  separate  undertakings  are  necessary  only 
where  the  respondents  have  entirely  distinct  and  conflicting 
interests  in  relation  to  the  disposal. of  the  appeal.119 

§  2672.     Insufficient  undertakings. 

If  the  undertaking  is  not  in  compliance  with  the  Code  pro- 
visions pursuant  to  which  it  is  given,  or  the  order  granting 
a  stay,  it  may,  if  respondent  treats  it  as  a  stay,  be  enforced  as 
a  common-law  undertaking.120  But  if  respondent  objects,  he 
may  require  a  proper  undertaking  or  enforce  his  judgment  or 
order  as  if  no  undertaking  had  been  given.  If  the  undertak- 
ing is  insufficient  but  substantially  complies  with  the  Code  or 
the  order  granting  a  stay,  the  respondent's  remedy  is  to  move 
to  set  it  aside  or  give  notice  of  the  defect  in  it.  He  cannot  dis- 
regard it  unless  the  defect  is  substantial.  For  instance,  if  the 
undertaking  refers  to  another  judgment  than  the  one  entered, 
the  respondent  may  disregard  it  and  enforce  his  judgment ;  121 
but  if  the  description  of  the  judgment  is  merely  defective  he 
must  move  to  set  it  aside  or  else  not  enforce  his  judgment  pend- 
ing the  appeal.122  An  undertaking  which  does  not  comply  with 
the  Code  as  to  the  affidavit  of  the  sureties  is  not  effective  as  a 
stay.123 

§  2673.     Amendment. 

The  Code  rule  as  to  amendment  of  undertakings  in  gen- 
eral 124  has  already  been  considered.     Section  1303  of  the  Code 

no  Thompson  v.  Ellsworth,  1  Barb.  Ch.  624. 

120  See  post,  §  2683. 

121  Dinkel  v.  Wehle,  61  How.  Pr.  159. 

122  Parfit  v.  Warner,  13  Abb.  Pr.  471. 

123  Sternhaus  v.  Schmidt,  5  Abb.  Pr.  66. 

124  Vol.  1,  p.  686. 


3764  SECURITY  TO  STAY  PROCEEDINGS.  §  2075 


Art.  II.     General  Rules  as  to  Undertaking. 


permits,  inter  alia,  an  amendment  to  be  made  where  there 
is  an  omission,  through  mistake,  inadvertence,  or  excusable  neg- 
lect, to  do  any  act  necessary  to  stay  the  execution  of  the  judg- 
ment or  order  appealed  from.  Under  that  section  it  is  ex- 
pressly provided  that  the  application  for  an  amendment  must 
be  on  affidavit  but  that  it  may  be  made  either  to  the  court  in, 
or  to  which,  the  appeal  is  taken. 

It  would  seem  that  this  power  to  amend  authorizes  the  al- 
lowance of  a  new  undertaking,  in  a  proper  ease,  where  the 
first  is  defective.125  The  undertaking  is  amendable  on  the 
application  of  the  sureties  where  the  liability  imposed  on  them 
is  more  than  was  intended.120  On  the  other  hand,  if  the  con- 
dition of  the  undertaking  is  not  sufficiently  broad,  it  may  be 
amended.127  Where  insufficient  sureties  are  given,  in  good 
faith,  the  appellant  may  be  relieved.128  The  motion  to  amend 
may  be  made  at  special  term  or  in  the  appellate  division.129 
The  consent  of  the  sureties  to  the  proposed  amendment  should 
be  obtained  before  the  motion  is  made.130  Relief  should  not 
be  given  where  appellant  has  been  guilty  of  gross  and  inexcus- 
able laches.131 

§  2674.     Filing. 

The  undertaking  must  be  filed  with  the  clerk  with  whom  the 
judgment  or  order  appealed  from  is  entered.132 

§  2675.     Service. 

A  copy  of  the  undertaking,  where  it  is  given  pursuant  to 
either  of  the  Code  sections  from  1327  to  1334,133  with  a  notice 

'125  Wood  v.  Kelly,  2  Hilt.  334. 

126  O'Sullivan  v.  Connors,  22  Hun,  137. 

127  Wilson  v.  Allen,  3  How.  Pr.  369. 

128  Wheeler  v.  Millar,  61  How.  Pr.  396. 

129  O'Sullivan  v.  Connors,  22  Hun,   137. 

iso  Ramsey  v.  Childs,  34  Hun,  329;  Biggert  v.  Nichols,  18  Misc.  596, 
42  N.  Y.  Supp.  472. 

131  Parker  v.  McCunn,  9  Wkly.  Dig.  245. 

132  Code  Civ.  Proc.  §  1307. 

133  Code  Civ.  Proc.  §  1334.  If  served  after  such  time,  it  is  ineffectual. 
Wick  v.  Ft.  Plain  &  R.  S.  R.  Co.,  21  Misc.  718,  49  N.  Y.  Supp.  334. 


§  2677  SECURITY  TO  STAY  PROCEEDINGS.  3765 

Art.  III.     Sureties. 

showing  where  it  is  filed,  must  be  served  on  the  attorney  for 
the  adverse  party  with  the  notice  of  appeal  or  before  the  ex- 
piration of  the  time  of  appeal.  However,  a  failure  to  serve 
a  copy  of  the  undertaking  may  be  waived,  it  would  seem,  by 
the  service  of  a  notice  that  respondent  excepts  to  the  sureties. 

Form  of  notice  of  filing  undertaking. 

[Title  of  cause.] 

Please  take  notice  that  an  undertaking,  of  which  the  within  is  a 

copy,  was  duly  filed  on  the day  of ,  190 — ,  in  the  office  of 

the  clerk  of  county. 

[Date.]  [Signature  of  appellant's  attorney.] 

[Address.] 


ART.   III.     SURETIES. 

§  2676.     Who  may  be,  and  number. 

The  undertaking  must  be  executed  by  at  least  two  sureties.134 
Appellant  himself  cannot  be  one  of  the  two  sureties.135  The 
rules  laid  down  in  a  preceding  volume  as  to  who  may  be  sure- 
ties on  undertakings  in  general 13G  apply  to  undertakings  on  ap- 
peal. 

§  2677.    Exception  and  justification. 

"It  is  not  necessary  that  the  undertaking  should  be  ap- 
proved; but  attorney  for  the  respondent  may,  within  ten  days 
after  the  service  of  a  copy  of  the  undertaking  with  notice  of 
\.ae  filing  thereof,  serve  upon  the  attorney  for  the  appellant 
a  written  notice  that  he  excepts  to  the  sufficiency  of  the  sure- 
ties. "Within  ten  days  thereafter,  the  sureties,  or  other  sure- 
ties in  a  new  undertaking  to  the  same  effect,  must  justify 

is*  Code  Civ.  Proc.  §  1334.  That  a  fidelity  or  surety  company  may 
take  the  place  of  two  sureties,  see  vol.  1,  pp.  672,  675.  "Who  must  exe- 
cute undertakings  in  general,  see  vol.  1,  p.  672.  Appellant  may  be  pun- 
ished for  contempt  where  he  puts  in  fictitious  bail.  Hall  v.  Lanza,  97 
App.  Div.  490,  89  N.  Y.  Supp.  980. 

135  Nichols  v.  MacLean,  98  N.  Y.  458. 

136  Volume  1,  p.  673. 


3766  SECURITY  TO  STAY  PROCEEDINGS.  §  2677 

Art.   III.     Sureties. — Exception  and  Justification. 

before  the  court  below,  or  a  judge  thereof,  or  a  referee  ap- 
pointed by  the  same,  or  a  county  judge.  At  least  five  days 
notice  of  the  justification  must  be  given.  A  referee  may  be 
appointed  upon  the  motion  of  either  party,  or  upon  the  court's 
own  motion  to  take  the  justification  of  such  sureties  and  to  re- 
port  Hie  evidence  upon  the  same  to  the  court  or  judge  with  his 
opinion.  The  court  may  further  direct  that  either  party  shall 
pay  the  expenses  of  such  reference.  If  the  court  or  judge 
finds  the  sureties  sufficient  he  must  indorse  his  allowance  of 
them  upon  the  undertaking,  or  a  copy  thereof,  and  a  notice 
of  the  allowance  must  be  served  upon  the  attorney  for  the  ex- 
ceptant. The  effect  of  a  failure  so  to  justify  and  procure  an 
allowance  is  the  same  as  if  the  undertaking  had  not  been  given. 
The  court  shall  also  have  power,  in  case  it  shall  be  made  to  ap- 
pear to  its  satisfaction,  upon  motion,  that  the  exception  was 
taken  unnecessarily  or  for  purposes  of  vexation  or  delay,  to 
set  the  same  aside  and  approve  the  undertaking."137 

It  will  be  noticed  that  the  first  step  which  respondent  may 
take  is  to  give  notice  of  exception  to  the  sureties,  within  the 
prescribed  ten  days.  Then  appellant  has  ten  days  in  which  to 
procure  a  justification  of  the  sureties  or  of  new  sureties,  and 
notice  of  justification  must  be  served  at  least  five  days  before 
the  day  set  for  justification,  i.  e.,  within  five  days  after  the 
service  of  the  notice  of  exception.  The  appellant  need  not, 
however,  procure  a  justification  if  there  is  sufficient  time  to 
give  a  new  undertaking,  i.  e.,  if  the  time  to  perfect  an  appeal 

137  Code  Civ.  Proc.  §  1335.  This  Code  provision  applies  to  appeals 
to  the  supreme  court  from  an  inferior  court  (Code  Civ.  Proc.  §  1341) 
and  to  appeals  to  the  appellate  division  from  a  judgment  of  the  su- 
preme court  (Id.  §  1351).  Exception  should  be  taken  to  the  sureties 
and  not  to  the  undertaking.  Young  v.  Colby,  2  Code  R.  68.  Justifica- 
tion of  fidelity  or  surety  company,  see  vol.  1,  p.  680.  Justification  of 
Sureties  for  more  than  double  the  amount  is  not  objectionable.  Hill 
V.  Burke,  62  N.  Y.  111.  Ten  days  in  which  to  serve  notice  of  exception 
does  not  begin  to  run  until  undertaking  is  filed  and  notice  thereon 
given.  Mere  service  of  copy  of  undertaking  does  not  start  the  time 
running.  Webster  v.  Stevens,  12  Super.  Ct.  (5  Duer)  682.  Sureties 
cannot  escape  liability  because  of  an  informality  in  the  justification. 
Hill.  v.  Burke,  62  N.  Y.  111. 


§  2677  SECURITY  TO  STAY  PROCEEDINGS.  3767 

Art.  III.     Sureties. — Exception  and  Justification. 

has  not  expired,  but  instead  may  give  a  new  undertaking-,  file 
it,  and  serve  a  copy  vfith  notice  of  filing,  in  which  case  there 
must  be  a  new  exception  to  the  sureties  if  respondent  wishes  to 
compel  the  sureties  to  justify.188  If  appellant  desires  to  have 
sureties  justify  he  may  either  give  notice  that  the  old  sureties 
will  justify  or  that  other  sureties  in  a  new  undertaking  to  the 
same  effect  will  justify.  If  the  sureties  are  found  sufficient 
the  judge  indorses  his  allowance  on  the  undertaking  or  on 
a  copy.  Then  the  appellants'  attorney  must  serve  notice  of  al- 
lowance on  the  attorney  for  the  party  excepting. 

Failure  to  have  the  sureties  justify,  within  ten  days  after 
service  of  the  notice  that  the  respondent  excepts  to  their  suf- 
ficiency, places  the  appellant  in  the  same  position  as  if  the  un- 
dertaking had  not  been  given ; 139  except  that  if  the  excep-= 
tions  are  withdrawn,140  or  if  the  undertaking  is  permitted  to 
operate  as  a  stay,  the  sureties  are  liable  though  they  do  not 
justify.141  In  other  cases,  if  the  sureties  do  not  justify  they 
are  released  from  liability.142 

The  execution  of  the  judgment,  and  all  proceedings  there- 
under, are  stayed  for  ten  days  after  the  service  of  a  notice  that 
the  respondent  excepts  to  the  sufficiency  of  the  sureties,  unless 
the  undertaking  is  disallowed  by  the  court  within  said  ten 
days.143 

An  allowance  of  the  undertaking  by  default  after  the  expira- 
tion of  the  ten  days  is  a  nullity.144     It  has  been  held  that  if 

138  Blake  v.  Lyon  &  F.  Mfg.  Co.,  75  N.  Y.  611. 

isoLewin  v.  Towbin,  51  App.  Div.  477,  64  N.  Y.  Supp.  740;  Chamber- 
lain v.  Dempsey,  13  Abb.  Pr.  421. 

,  140  But  withdrawal  of  exceptions  or  a  waiver  of  justification, 
served  after  the  action  was  revived  on  the  death  of  appellant,  does 
not  prevent  the  discharge  of  the  sureties  who  had  not  justified  within 
the  statutory  time.  Ginsburg  v.  Kuntz,  60  Hun,  504,  15  N.  Y.  Supp. 
237. 

i4i  Goodwin  v.  Bunzl,  102  N.  Y.  224. 

1*2  Manning  v.  Gould,  90  N.  Y.  476,  480,  which  thoroughly  considers 
the  effect  of  this  Code  provision. 

i«Laux  v.  Gildersleeve,  22  App.  Div.  98,  101,  47  N.  Y.  Supp.  770. 

I**  Lewin  v.  Towbin,  51  App.  Div.  477,  480,  64  N.  Y.  Supp.  740.  See, 
also,  Hees  v.  SnelL  8  How.  Pr.  185. 


3768  SECURITY  TO  STAY  PROCEEDINGS.  g  2077 


Art.  III.     Sureties. 


the  respondent,  or  some  one  in  his  behalf,  does  not  attend  at 
the  time  set  for  the  justification  of  the  sureties,  he  waives  the 
benefit  of  his  exceptions,145  but  it  is  doubtful  whether  such  rule 
applies  as  the  Code  provision  now  stands. 

One  who  examines  a  proposed  surety  should  put  down  "all" 
the  answers,  whether  or  not  satisfactory.146 

The  court  has  power  to  allow  an  undertaking  to  be  filed 
nunc  pro  tunc  when  justification  has  been  inadvertently  omit- 
ted, after  exception  to  the  sureties,  though  a  new  undertaking 
might  have  been  filed.147 

Form  of  notice  of  exception  to  sureties. 

[Title  of  cause.] 

Please  take  notice  that  the  respondent  excepts  to  the  sufficiency  of 
all  the  sureties  who  executed  the  undertaking  filed  by  the  appellant  in 

the  office  of  the  clerk  of  the  county  of  on  the  day  of 

,  190 — ,  and  a  copy  of  which  was  served  on  me  on  the 

day  of ,  190 — ,  on  appeal  to  the court,  from  the  judgment 

(or  "order")  entered  in  the  above-entitled  action. 

[Date.]     [Signature  and  office  address  of  respondent's  attorney.] 

[Address.] 

Form  of  notice  of  justification. 

[Title  of  cause.] 

Please  take  notice  that and ,  the  sureties  who  executed 

the  undertaking  given  by  the  appellant  on  his  appeal  to  the  

court  from  the  judgment   (or  "order")    entered  in  the  above-entitled 

action,   which  was  filed   in  the   office   of  the   county  clerk  of 

county,  on  the  day  of  ,  190 — ,  and  a  copy  of  which  was 

served  on  you  on  the  day  of  ,  190 — ,  will  justify  before 

Hon.  ,  justice  of  the  court,  at  his  office  in  the  city  of 

,  on  the day  of ,  190 — ,  at ■  in  the  noon. 

[Date.]  [Signature,  etc.,  of  appellant's  attorney.] 

[Address.] 

Notice  of  justification  of  sureties  in  a  new  undertaking. 

[Title  of  cause.] 
Please  take  notice  that  ,  [a  butcher],  residing  at  No.  


!*5  So  held  under  old  Code  provision  where  justification  was  re- 
quired as  of  bail  on  an  order  of  arrest.  Ballard  v.  Ballard,  18  N.  Y. 
491. 

146  Schmidt  v.  Livingston,  19  Misc.  353,  43  N.  Y.  Supp.  494. 

i«  Hardt  v.  Schulting,  59  How.  Pr.  353. 


g  2678  SECURITY  TO  STAY  PROCEEDINGS.  3769 


Art.  III.     Sureties. 


street  in  the  city  of ,  and ,  [a  farmer],  residing  at 


the  sureties  in  a  new  undertaking  executed  by  the  appellant  in  place 
of,  and  to  the  same  effect  as,  the  undertaking  filed  in  the  office  of 

the  county  clerk  of county,  on  the day  of ,  190 — , 

a  copy  of  which  was  served  on  you  on  the day  of ,  190—, 

will  justify  before  Hon.  ,  justice  of  the court,  at  , 

on  the day  of ,  190 — ,  at o'clock  in  the noon. 

[Date.]  [Signature,  etc.,  of  appellant's  attorney.] 

[Address.] 

■  Form  of  allowance  of  sureties. 

I  find  the  sureties  in  the  within  undertaking  sufficient,  and  hereby 
allow  them,  and  each  of  them. 

[Date.]  [Signature  and  official  title  of  judge.] 

■  Form  of  notice  of  allowance  of  sureties. 

[Title  of  cause.] 

Please  take  notice  that,  on  the day  of ,  190 — ,  the  sure- 
ties in  the  undertaking  given  by  the  appellant  on  appeal  to  the 


court  from  the  judgment    (or  "order")    entered   in  the  above-entitled 

action,  justified  before  Hon. ,  justice  of  the court,  and  were 

found  sufficient  by  said  justice  who  allowed  them,  and  each  of  them. 

[Date.]  [Signature,  etc.,  of  appellant's  attorney.] 

[Address.] 

§  2678.     New  undertaking  where  sureties  become  insolvent. 

The*  court  in  which  the  appeal  is  pending,  upon  satisfactory 
proof,  by  affidavit,  that  since  the  execution  of  an  undertaking 
one  or  more  of  the  sureties  therein  have  become  insolvent,  or 
that  his  or  their  circumstances  have  become  so  precarious  that 
there  is  reason  to  apprehend  that  the  undertaking  is  not  suffi- 
cient for  the  securit}7  of  the  respondent,  may  make  an  order, 
requiring  the  appellant  to  file  a  new  undertaking  and  to  serve 
a  copy  thereof,  as  required  with  respect  to  the  original  under- 
taking.148 

1*8  Code  Civ.  Proc.  §  1308.  This  provision  does  not  apply  to  an  ap- 
peal to  a  county  court  from  a  justice's  judgment.  Bonnett  v.  Town, 
send,  63  Hun,  45,  17  N.  Y.  Supp.  566.  The  court  cannot  require  new 
sureties  nor  stay  proceedings  because  the  guardian  ad  litem  fails  to 
pay  the  costs  of  a  judgment.  Wice  v.  Commercial  Fire  Ins.  Co.,  2 
Abb.  N.  C.  325,  7  Daly,  258. 


3770  SECURITY  TO  STAY  PROCEEDINGS.  §  2678 


Art.  III.     Sureties. — Jnsolvency. 


This  power  to  order  a  new  undertaking  is  purely  statutory.149 
The  Code  provision  is  not  mandatory,  since  the  making  of  the 
order  rests  in  the  discretion  of  the  court.150 


Form  of  order  for  new  undertaking. 

[Title  of  cause.]  At  a term,  etc. 

On  reading  and.  filing  the  affidavit  of ,  dated  the day  of 

,    190 — ,   and   on   proof   of   service  of  notice   of   this   motion   on 

,  attorney  for ,  the  appellant  herein,  and  on  reading  [name 


any  opposing  papers] ;   now,  on  motion  of  ,  attorney  for  , 

It  is  hereby  ordered  that  the  appellant  file  a  new  undertaking,  and 
that  he  serve  a  copy  thereof  as  required  with  respect  to  the  original 
undertaking,  within  [twenty]  days  after  the  service  of  a  copy  of  this 
order  on  his  attorney;  and,  in  case  of  failure  so  to  do,  that  his  said 
appeal  be  dismissed  [or  "that  the  judgment  (or  'order')  appealed  from 
be  executed  as  if  the  original  undertaking  had  not  been  given"]. 


Court  in  which  motion  must  be  made.     The  motion  must 


be  made  in  the  court  in  which  the  appeal  is  pending.  The 
court  from  which  the  appeal  is  taken  has  no  jurisdiction  to 
make  the  order.151 

Contents  of  new  undertaking.     "Where  a  surety  on  the 

undertaking  has  become  insolvent,  after  an  appeal  to  the  court 
of  appeals,  the  appellant  will  not  be  allowed  to  file  a  new  un- 
dertaking simply  for  costs  where  the  original  was  for  costs  and 
to  stay  proceedings.152 

Order  as  releasing  sureties  from  liability.  An  order  re- 
quiring a  new  undertaking  does  not,  of  itself,  release  the  sure- 
ties from  liability.  If  the  respondent  takes  no  further  steps 
after  obtaining  the  order,  to  enforce  the  judgment  or  dismiss 
the  appeal,  the  sureties  remain  liable  until  a  new  undertaking 

i4»Bonnett  v.  Townsend,  63  Hun,  45,  17  N.  Y.  Supp.  566;  Willett  v. 
Stringer,  15  How.  Pr.  310.  That  surety  swears  falsely  as  to  his  suf- 
ficiency does  not  warrant  the  requiring  a  new  undertaking,  see  Elson 
v.  Murray,  27  Hun,  536. 

i5o  If  security  is  sufficient,  insolvency  of  one  surety  does  not  require 
that  the  court  grant  the  order.     Dering  v.  Metcale,  72  N.  Y.  613. 

i5i  Parks  v.  Murray,  109  N.  Y.  646. 

152  Beeman  v.  Banta,  113  N.  Y.  615. 


«  2679  SECURITY  TO  STAY  PROCEEDINGS.  3771 

Art.  IV.     Liability  on,  and  Enforcement  of,  Undertaking. 

is  executed.153  But  if  the  original  undertaking  was  merely  to 
stay  proceedings,  the  issuing  of  execution  on  the  judgment  on 
failure  of  the  appellant  to  give  a  new  undertaking,  waives  the 
right  to  proceed  against  the  sureties.134  If  the  original  under- 
taking was  given  both  to  perfect  an  appeal  to  the  court  of  ap- 
peals and  to  stay  proceedings,  and  the  appeal  is  dismissed  on 
failure  to  give  a  new  undertaking,  the  sureties  are  liable  on 
the  undertaking  only  in  so  far  as  it  provides  for  the  payment 
of  damages  and  costs,  i.  e.,  in  so  far  as  it  was  given  to  perfect 
the  appeal.155 

Effect  of  failure  to  comply  with  order.     If  the  appellant 

fails  to  file  a  new  undertaking  and  serve  a  copy  thereof,  within 
twenty  days  after  the  service  of  a  copy  of  the  order,  or  such 
further  time  as  the  court  allows,  the  appeal  must  be  dismissed, 
or  the  order  or  judgment,  from  which  the  appeal  is  taken,  must 
be  executed,  as  if  the  original  undertaking  had  not  been 
given.156  If  the  original  undertaking  was  given  merely  to  per- 
fect the  appeal,  the  failure  to  obey  the  order  requires  a  dis- 
missal of  the  appeal.  If  it  was  given  merely  to  stay  proceed- 
ings, the  appeal  cannot  be  dismissed,  but  the  stay  is  termi- 
nated.157 


ART.    IV.      LIABILITY      ON,     AND      ENFORCEMENT     OF,      UNDER- 
TAKING. 

§  2679.     Liability  in  general. 

The  liability  of  sureties  is  restricted  to  the  strict  terms  of 
their  contract,  and  cannot  be  extended  by  inference  or  impli- 
cation, except  where  the  instrument  shows  a  clear  intention  to 
come  under  a  more  enlarged  obligation.158 

153,  154  Collins  v.  Ball,  31  Hun,  187. 

iss  Liability  limited  to  $500.  Galinger  v.  Engelhardt,  26  Misc.  49, 
55  N.  Y.  Supp.  334. 

"8  Code  Civ.  Proc.  §  1308. 

i"Genter  v.  Fields,  2  Abb.  Dec.  253;  Jewett  v.  Crane,  35  Barb.  208. 

isaMcElroy  v.  Mumford,  128  N.  Y.   303,  307. 


3772  SECURITY  TO  STAY  PROCEEDINGS.  §  2682 

Art.   IV.     Liability  on,  and  Enforcement  of,  Undertaking. 

§  2680.     What  constitutes  an  affirmance  so  as  to  make  sure- 
ties liable. 

A  pro  forma  affirmance,  based  exclusively  on  the  stipulation 
of  the  parties  and  without  any  hearing  or  adjudication  by  the 
appellate  court  on  the  merits,  is  not  an  affirmance  within  the 
meaning  of  the  word  as  used  in  the  undertaking.159  If  two 
or  more  appeal  together,  and  the  undertaking  provides  that 
the  sureties  will  pay  if  the  judgment  "or  any  part  thereof,  be 
affirmed,"  the  sureties  are  liable  if  the  judgment  is  affirmed 
against  one  appellant  though  reversed  as  to  the  other.100 

§  2681.    What  constitutes  a  reversal  so  as  to  discharge  sureties. 

Liability  on  an  undertaking,  on  an  appeal  to  the  court  of  ap- 
peals, to  pay  any  costs  or  damages  which  may  be  awarded 
against  the  appellant  on  the  appeal,  together  with  the  judg- 
ment, if  affirmed,  is  terminated  by  a  reversal  of  the  judgment 
though  with  "costs  to  abide  the  event."161  But  liability  on 
an  undertaking  given  on  an  appeal  to  the  appellate  division 
is  not  terminated  by  a  reversal  by  the  appellate  division,  but 
continues,  and  is  enforcible,  in  case  the  court  of  appeals  re- 
verses the  appellate  division  and  affirms  the  original  judg- 
ment ; 162  although  the  liability  does  not  extend  to  the  costs  on 
the  appeal  to  the  court  of  appeals.163 

§  2682.     Liability  as  between  sureties  on  different  undertak- 
ings. 

Where  there  are  two  undertakings  on  appeal,  one  to  the  ap- 
pellate division  and  one  to  the  court  of  appeals,  and  both  con- 

159  Foo  Long  v.  American  Surety  Co.,  146  N.  Y.  251,  reversing,  on 
this  point  61  Hun,  595,  16  N.  Y.  Supp.  424. 

160  Seacord  v.  Morgan,  4  Abb.  Dec.  172. 

lei  Jackson  v.  Lawyers'  Surety  Co.,  95  App.  Div.  368,  88  N.  Y.  Supp. 
576. 

162  Robinson  v.  Plimpton,  25  N.  Y.  484,  followed  in  Poo  Long  v. 
American  Surety  Co.,  146  N.  Y.  251,  253;  Chester  v.  Broderick,  60  Hun, 
562,  15  N.  Y.  Supp.  353;  MacKellar  v.  Farrell,  29  State  Rep.  350,  8  N. 
Y.  Supp.  307. 

163  Hinckley  v.  Kreitz,  58  N.  Y.  583. 


8  26S3  SECURITY  TO  STAY  PROCEEDINGS.  3773 

Art.  IV.     Liability  on,  and  Enforcement  of,  Undertaking. 


tain  an  agreement  to  pay  the  judgment,  if  affirmed,  the  pri- 
mary liability,  in  the  event  of  an  affirmance,  rests  on  the 
sureties  on  the  court  of  appeals  undertaking,  so  that  their  re- 
lease by  the  judgmeut  creditor,  without  payment  in  full,  dis- 
charges the  sureties  on  the  appellate  division  undertaking.164 

§  2683.     Liability  on  common-law  undertaking. 

The  fact  that  an  undertaking  is  framed  under  the  wrong 
Code  provision,  or  is  not  in  exact  compliance  with  the  order 
granting  a  stay  and  prescribing  the  security  to  be  given,  does 
not  prevent  it  from  becoming  enforcible  as  a  common-law 
agreement.  Such  an  undertaking  is  to  be  treated  simply  as  an 
agreement  between  the  parties,  and  the  usual  and  ordinary 
legal  signification  is  to  be  given  to  the  words  used.105  An  un- 
dertaking insufficient  as  a  statutory  undertaking,  may,  where 
founded  on  a  good  consideration,  and  not  illegal,  and  not  ob- 
jected to,  be  treated  as  a  common-law  undertaking,  but  in  such 
case  it  can  only  be  enforced  according  to  its  terms  and  it  will 
not  be  given  the  force  and  effect  of  a  statutory  undertaking 
unless  its  provisions  require  it.1CG  There  must  be  a  considera- 
tion, though  it  need  not  be  stated  in  the  undertaking,107  to 
make  the  undertaking  binding  as  a  common-law  obligation.  An 
undertaking,  though  properly  executed  and  filed,  which  for  any 
valid  reason  is  disregarded  or  fails  to  secure  the  stay  of  pro- 

164  Hinckley  v.  Kreitz,  58  N.  Y.  583.  But  where  the  liability  of  the 
sureties  on  the  court  of  appeals  undertaking  is  first  exhausted,  the 
sureties  on  the  other  undertaking  are  not  discharged  where  a  balance 
remains  due.     Chester  v.  Broderick,  131  N.  Y.  549. 

les  Concordia  Sav.  &  Aid  Ass'n  v.  Read,  124  N.  Y.  189;  Henmon  v 
Kipp,  30  App.  Div.  288,  51  N.  Y.  Supp.  960. 

166  Concordia  Sav.  &  Aid  Ass'n  v.  Read,  124  N.  Y.  189;  Goodwin  v. 
Bunzl,  102  N.  Y.  224. 

167  The  statute  of  frauds  does  not  make  it  necessary  that  an  under- 
taking shall  state  the  consideration  for  the  sureties'  obligation  in 
order  to  entitle  the  obligee  to  maintain  an  action.  Gein  v.  Little,  43 
Misc.  421,  89  N.  Y.  Supp.  488.  A  sealed  undertaking  on  appeal,  which 
was  ineffectual  as  a  statutory  undertaking,  was  not  void  as  to  the 
sureties  under  the  statute  of  frauds  on  the  ground  that  the  considera- 
tion was  not  expressed  therein.     Id. 


; ;  7  7  t  SECURITY  TO  STAY  PROCEEDINGS.  §  2684 

Art.   IV.      Liability  on,  and  Enforcement  of,  Undertaking. 

eeedings,  is  virtually  without  consideration  and  cannot  be  en- 
t'orced  against  the  sureties.108  But  where,  in  an  action  on  the 
undertaking,  the  instrument  was  sealed,  and  the  sureties  made 
no  attempt  to  rebut  the  presumption  of  a  consideration  arising 
front  such  fact,  and  it  was  shown  by  plaintiff  that  the  under- 
taking was  given  to  stay  proceedings,  and  that,  though  not 
sufficient  for  such  purpose,  it  was  so  treated,  a  consideration 
was  shown  rendering  the  sureties  liable  upon  the  undertaking 
as  upon  a  common-law  obligation.109  On  the  other  hand,  an 
undertaking  which  is  a  voluntary  agreement,  ineffectual  to 
accomplish  the  purpose  for  which  it  was  executed,  and  not  se- 
curing to  the  respondent  the  benefit  intended  inasmuch  as  he 
treats  it  as  void,  is  not  enforcible.170  For  instance,  if  the 
obligee  elects  to  treat  the  undertaking  for  a  stay  as  invalid, 
and  proceeds  to  collect  his  judgment  in  disregard  thereof,  he 
cannot  afterwards  sue  thereon.171  An  undertaking  given  to 
stay  proceedings,  in  a  case  where  a  stay  can  be  obtained  only 
by  order,  cannot  be  enforced  as  a  common-law  undertaking 
where  no  order  granting  a  stay  has  been  made,  and  where  there 
is  nothing  to  show  that  the  respondent  agreed  to,  or  actually 
did,  refrain  from  enforcing  his  order.172 

§  2684.     Discharge  of  sureties  by  extrinsic  events. 

In  preceding  sections,  the  discharge  of  a  surety  where  he 
fails  or  refuses  to  justify,173  or  where  a  new  undertaking  is 
ordered  on  a  change  in  the  pecuniary  circumstances  of  one  or 
both  of  the  sureties,174  has  been  considered.     General  rules  as 

168  Wing  v.  Rogers,  138  N.  Y.  361,  366. 

iG9  Where  the  undertaking,  when  produced  in  evidence,  is  sealed, 
the  burden  is  on  the  sureties  defending  on  the  ground  of  want  of  con- 
sideration to  rebut  the  presumption  of  consideration  arising  from  the 
use  of  the  seal.     Gein  v.  Little,  43  Misc.  421,  89  N.  Y.  Supp.  488. 

i7o  Carter  v.  Hodge,  150  N.  Y.  532. 

i7i  Hemmingway  v.  Poucher,  98  N.  Y.  281. 

i72Mossein  v.  Empire  State  Surety  Co.,  97  App.  Div.  230,  89  N.  Y. 
Supp.  843. 

its  See  ante,  §  2677. 

174  See  ante,  §  2678. 


ft  26S7  SECURITY  TO  STAY  PROCEEDINGS.  3775 

Art.  IV.     Liability  on,  and  Enforcement  of,  Undertaking. 

to  what  will  release  sureties  from  liability  on  undertakings  in 
general  are  set  forth  in  volume  one  of  this  work.175 

Change  of  parties  pending  the  appeal.     A  change  of 

parties  pending  the  appeal  does  not  change  the  liability  of  the 
sureties.176  A  recovery  against  a  person  substituted,  or 
against  a  survivor,  is  a  recovery  against  the  appellant.177 

Extension  of  time.     An  agreement  between  the  parties, 

on  stipulating  for  an  affirmance  of  the  judgment,  that  no  exe- 
cution issue  within  a  specified  number  of  months,  releases  the 
sureties.173 

Change  in  the  statutes.     A  change  in  the  law  in  respect 

to  the  damages  which  may  be  awarded  on  the  appeal  does  not 
release  the  sureties.179 

Discharge  in  bankruptcy.  The  discharge  of  the  judg- 
ment debtor  as  a  bankrupt,  pending  an  appeal  from  the  judg- 
ment, does  not  release  the  sureties.180 

§  2685.     Remedy  by  action. 

The  remedy  on  the  undertaking  is  by  action.1S1 

§  2686.     Exhausting  remedy  by  enforcing  judgment  as  condi- 
tion precedent. 

The  judgment  creditor  is  not  bound  to  exhaust  his  remedy 
on  the  judgment  before  enforcing  the  undertaking.182 

§  2687.     Notice  of  entry  of  judgment  or  order  as  condition 
precedent. 

An  action  shall  not  be  maintained  upon  an  undertaking 
given  upon  an  appeal  taken  to  the  appellate  division  or  to  the 

175,  176  Volume  1,  p.  683. 

iT7  Potter  v.  Van  Vranken,  36  N.  Y.  619,  630. 

its  Ross  v.  Ferris,  IS  Hun,  210. 

179  Horner  v.  Lyman,  4  Keyes,  237. 

iso  Knapp  v.  Anderson,  71   N.  Y.  466. 

i8i  Reference  to  ascertain  damages  cannot  be  ordered.  Cambreling 
v.  Purton,  40  State  Rep.  771,  16  N.  Y.  Supp.  49. 

182  Wood  v.  Derrickson,  1  Hilt.  410;  Heebner  v.  Townsend,  8  Abb. 
Pr.  234. 


3776  SECURITY  TO  STAY  PROCEEDINGS.  §  2687 

Art.   IV.     Liability  on,  and  Enforcement  of,  Undertaking. 

supreme  court,  "until  ten  days  have  expired  since  the  service 
upon  the  attorney  for  the  appellant,  and  upon  the  sureties 
on  such  undertaking,  of  a  written  notice  of  the  entry  of  a 
judgment  or  order,  affirming  the  judgment  or  order  appealed 
from,  or  dismissing  the  appeal.  Such  service  may  be  made 
by  mailing  such  notice  in  a  postpaid  wrapper,  addressed  to  said 
surety  or  sureties  at  the  last  known  postoffice  address  of  such 
surety  or  sureties. ' ' 183 

This  Code  provision  does  not  apply  to  actions  on  undertak- 
ings given  on  an  appeal  to  the  court  of  appeals.184  Formerly, 
the  rule  did  not  apply  where  the  appeal  was  simply  dismissed 
and  the  judgment  not  affirmed,185  but  now  it  applies  to  a  judg- 
ment of  dismissal  as  well  as  one  of  affirmance.  It  does  not  ap- 
ply to  appeals  taken  from  orders  or  decrees  made  by  a  surro- 
gate.186 

Sufficiency  of  notice.     The  strict  requirements  as  to  the 

service  of  a  notice  to  limit  the  time  to  take  an  appeal  do  not 
apply  to  a  service  made  under  this  Code  section.187  When  the 
order  served  bore  a  certificate  of  the  clerk  that  it  had  been 
filed  and  entered  and  was  also  indorsed  by  the  attorney,  the 
notice  is  sufficient  though  there  was  no  specific  notice  signed 
by  the  attorney  that  the  order  had  been  entered.188  The  notice 
need  not  specifically  state  that  the  judgment  of  affirmance  has 
been  entered,1S9  although  service  of  a  copy  of  the  order  affirm- 
ing the  judgment  is  insufficient  where  there  is  nothing  to  show 

is3  Code  Civ.  Proc.  §  1309.  Prior  to  1894,  the  Code  did  not  require 
service  of  notice  on  the  sureties  on  the  undertaking  nor  allow  service 
by  mail.  The  object  of  this  Code  provision  is  to  give  the  sureties 
notice  of  the  amount  for  which  they  are  liable,  with  ample  time  to 
enable  them  to  pay,  without  the  expense  of  an  action  on  the  under- 
taking.    Loweree  v.  Tallman  30  App.  Div.  225,  52  N.  Y.  Supp.  431. 

is*  Staples  v.  Gokey,  34  Hun,  289.  Sterne  v.  Talbott,  89  Hun,  368, 
35  X.  Y.  Supp.  412;  Weil  v.  Kempf,  12  Civ.  Proc.  R.  (Browne)  379; 
Galinger  v.  Engelhardt,  26  Misc.  49,  55  N.  Y.  Supp.  334. 

!»••  Wheeler  v.  McCabe,  5  Daly,  387. 

186  Hildreth  v.  Lerche,  23  Abb.  N.  C.  428,  10  N.  Y.  Supp.  238. 

is?,  is8  Milligan  v.  Cottle,  92  Hun,  323,  36  N.  Y.  Supp.  904. 

lso  Rogers  v.  Schmersahl,  4  Hun,  623. 


§  2687  SECURITY  TO  STAY  PROCEEDINGS.  3777 

Art.  IV.     Liability  on,  and  Enforcement  of,  Undertaking. 

that  the  order  had  been  entered.190  "When  an  appeal  is  dis- 
missed with  costs  by  order  of  the  appellate  division,  a  copy  of 
such  order  itself  should  not  be  served  on  the  parties.  A  copy 
of  the  judgment,  entered  on  the  order,  should  be  served.191 

Form  of  notice. 

[Title  of  cause.] 

Please  take  notice  that  on  the  day  of  ,  190 — ,  a  judg- 
ment [or  "order"],  in  the  above  action,  was  entered  in  the  office  of 

the  county  clerk  of  county,  pursuant  to  a  decision  rendered 

by  the  appellate  division  of  the  supreme  court,  department,  af- 
firming [or  "dismissing  the  appeal  from"]  the  judgment  [or  "order"] 

of  the court  for  [state  relief  granted  by  judgment  or  order  of 

the  lower  court],  and  awarding  dollars  costs  of  the  appeal  to 


[Date.]     [Signature  and  office  address  of  respondent's  attorney.] 
[Address.] 

Who  must  be  served.     Under  the  old  Code  the  notice 


was  required  to  be  served  on  the  "adverse  party."  Now  it 
must  be  served  on  the  attorney  for  the  appellant  and  on  the 
sureties  on  the  undertaking.  If,  however,  the  attorney  for  the 
appellant  is  dead,  and  no  attorney  has  been  appointed  in  his 
place,  there  is  a  sufficient  excuse  for  failure  to  serve  notice 
other  than  on  the  sureties.192 

Second  notice.     A  reduction  of  the  costs  on  retaxation 

after  entry  of  the  judgment  and  service  of  'a  notice  thereof 
does  not  necessitate  the  service  of  a  new  notice.193 

Waiver  of  failure  to  serve,  or  defects  in,  notice.  Fail- 
ure to  serve  the  notice  is  not  waived  by  applying  for  leave  to 
appeal  to  the  court  of  appeals.194     But  an  irregularity  in  the 

190  Rae  v.  Beach,  76  N.  Y.  164.  : 

"I  Loweree  v.  Tallman,  30  App.  Div.  225,  52  N.  Y.  Supp.  431. 

192  Chilson  v.  Howe,  17  Civ.  Proc.  R.  (Browne)  86,  5  N.  Y.  Supp.  780. 
It  is  immaterial  that  the  attorney  was  alive  for  several  months  after 
the  entry  of  the  judgment  appealed  from.  Id.  Notice,  after  the  death 
of  the  attorney,  to  appoint  another  attorney,  which  respondent  fails  to 
do,  and  then  a  service  on  the  respondent,  is,  at  any  event,  sufficient 
Id. 

193  Yates  v.  Burch,  87  N.  Y.  409. 

194  Rae  v.  Harteau,  7  Daly,  95. 

N.  Y.  Prac— 237. 


;;;7n  SECURITY  TO  STAY  PROCEEDINGS.  §  2689 

Art.  IV.     Liability  on,  and  Enforcement  of,  Undertaking. 

notice  is  waived  by  the  acceptance  and  retention  of  the  no- 
tice.195 

§  2688.    Right  to  sue  as  precluded  by  appeal  to  court  of  ap- 
peals. 

Where  an  appeal  to  the  court  of  appeals,  from  a  judgment 
or  order,  is  perfected  after  service  of  the  judgment  or  order  of 
the  supreme  court  or  appellate  division,  on  the  attorney  for  ap- 
pellant and  on  the  sureties,  as  a  condition  precedent  to  suing 
on  the  undertaking,  and  security  is  given  thereupon,  to  stay 
proceedings,  an  action  cannot  be  maintained  on  the  undertak- 
ing given  on  the  preceding  appeal,  until  after  the  final  deter- 
mination of  the  appeal  to  the  court  of  appeals.190 

§  2689.     Complaint. 

The  complaint  must  allege  service  of  the  notice  of  the  order 
or  judgment  of  affirmance  or  dismissal,  where  the  undertaking 
was  given  on  an  appeal  to  the  supreme  court  or  the  appellate 
division.197  It  is  not  demurrable  because  it  omits  to  aver  that 
the  undertaking  was  accompanied  by  the  affidavit  of  the  sure- 
ties that  they  were  worth  double  the  sum  specified  therein.198 

Form  of  complaint. 

[Title  of  court  and  venue.] 
[Title  of  cause.] 

The  plaintiff  above  named,  complaining  of  defendant,  alleges: 

I.  That  on  the  day  of  ,  judgment  was  rendered    [or 

"an  order  was  made"]  in  the court  in  favor  of  the  above-named 

plaintiff  against  for  the  sum  of  dollars    [or  otherwise 

state  the  nature  of  the  judgment  or  order]. 

II.  That  on  the  day  of  the  said  appealed  to 

the court,  from  the  said  judgment  [or  "order"]. 

III.  That  on  or  about  the  day  of ,  190 — ,  defendant 

made,  and  caused  to  be  filed  with  the  county  clerk  of  county, 

195  Failure  to  add  office  address  of  attorney  to  notice.  Evans  v. 
Backer,  101  N.  Y.  289. 

196  Code  Civ.  Proc.  §  1309. 

"I  Porter  v.  Kingsbury.  71  N.  Y.  588. 

198  Gibbons  v.  Berhard,  16  Super.  Ct.   (3  Bosw.)   635. 


§  2691  SECURITY  TO  STAY  PROCEEDINGS.  3779 


Art.   V.     Effect  of  Stay. 


an  undertaking,  a  copy  of  which  is  hereto  annexed,  marked  "A"  and 
made  a  part  of  this  complaint.  [At  pleader's  option,  substance  of  un- 
dertaking may  be  set  forth.] 

ry.     That  by  an  order  of  the  court,  made  on  or  about  the 

day  of  ,  190 — ,  the  judgment  [or  "order"]  appealed  from 

was  in  all  respects  affirmed  [or  state  other  disposition  of  case],  and 

the  sum   of  dollars,   costs   and   damages   on   the   appeal,   was 

awarded  against  the  appellant,  but  that  no  part  of  the  same  has  been 
paid. 

V.  [If  undertaking  was  given  on  appeal  to  appellate  division  or  ap- 
pellate term  add :  ]     That  more  than  ten  days  before  the  commencement 

of  this  action  plaintiff  served  on  the  attorney  for  said  ,  and  on 

and ,  the  sureties  on  the  said  undertaking,  written  notice 

of  the  entry  of  said  order  affirming  [or  "dismissing  the  appeal  from"] 
said  judgment  [or  "order"]. 

Wherefore,  this  plaintiff  demands,  etc. 

§  2690.    Defenses. 

The  general  rules  as  to  what  defenses  may  be  set  up  by  sure- 
ties on  undertakings  in  general,  a.s  set  forth  in  a  preceding 
volume,199  apply.  Technical  defects  and  informalities  in  the 
undertaking  cannot  be  set  up  as  a  defense.  For  iustance,  er- 
roneous recitals  in  the  uudertaking  as  to  the  amount,  and  the 
date  of  entry,  of  the  judgment,  cannot  be  set  up  as  a  de- 
fense.200 It  is  not  a  defense  that  the  statute  of  limitations  has 
run  against  a  co-surety,  where  it  has  not  run  against  defend- 
ant.201 Nor  is  it  a  defense  to  an  action  on  an  undertaking 
given  by  executors  that  they  have  not  sufficient  assets  to  pay 
the  judgment.202 

ART.  V.      EFFECT  OF  STAY. 

§  2691.     General  rules. 

Where  an  appeal  to  the  general  term  of  any  court,  or  to  the 
appellate  division,  or  to  the  court  of  appeals,  or  otherwise,  has 

io9  Vol.  l,  p.  689. 

200  Levi  v.  Dorn,  28  How.  Pr.  217. 

201  Staples  v.  Gokey,  34  Hun,  289. 

202  Remedy  was,  before  decision  of  appeal,  to  apply  to  dispense  with 
or  limit  the  security.     Yates  v.  Burch,  87  N.  Y.  409. 


3780  SECURITY  TO  STAY  PROCEEDINGS.  §  2691 


Art.   V.     Effect  of  Stay. 


been  perfected,203  and  the  other  acts,  if  any, 20i  required  to  be 
done,  to  stay  the  execution  of  the  judgment  or  order  appealed 
from,  have  been  done,  the  appeal  stays  all  proceedings  to  en- 
force the  judgment  or  order  appealed  from,  except  that  the 
court  or  judge,  from  Avhose  determination  the  appeal  is  taken, 
may  proceed  in  any  matter  included  in  the  action  or  special 
proceeding,  and  not  affected  by  the  judgment  or  order  ap- 
pealed from  or  not  embraced  within  the  appeal;  or  may  cause 
perishable  property  to  be  sold,  pursuant  to  the  judgment  or 
order  appealed  from.  The  proceeds  of  such  a  sale  must  be 
paid,  to  abide  the  result  of  the  appeal,  into  the  court  from  or  in 
which  the  appeal  is  taken;  or,  if  it  was  taken  from  a  final  de- 
termination of  a  special  proceeding,  into  the  supreme  court.205 

The  object  of  this  Code  provision  is  to  protect  the  party  ap- 
pealing from  having  the  judgment  enforced  against  him  while 
the  controversy  is  pending.206 

The  stay  applies  only  to  the  ordinary  proceedings  in  the 
action.207  The  proceedings-  stayed  are  only  those  which  may 
be  instituted  by  the  respondent  for  the  purpose  of  enforcing 
the  provisions  of  the  judgment.208  By  the  express  terms  of 
this  Code  section,  a  perfected  appeal,  with  certain  exceptions, 
where  security  to  stay  proceedings  has  been  given,  "stays  all 
proceedings  to  enforce  the  judgment  or  order  appealed  from."' 
It  has  been  held  that  a  motion  for  alimony  pendente  lite,  to 
defend  the  appeal,  is  not  a  "proceeding  to  enforce  the  judg- 
ment or  order, ' ' 209  nor  is  the  filing  and  docketing  with  the 
county  clerk  of  a  transcript  of  the  docket  of  a  judgment,  where 

203  An  appeal  is  "perfected,"  within  this  Code  provision,  when  the 
notice  of  appeal  has  been  served  on  the  respondent  and  filed  with  the 
clerk,  except  that  in  the  court  of  appeals,  in  addition,  an  undertaking 
to  pay  costs  must  be  filed. 

204  Phrase  "if  any"  construed.  Taft  v.  Marsily,  14  Civ.  Proc.  R. 
(Browne)  415. 

205  Code  Civ.  Proc.  §  1310. 

2og  Morey  v.  Tracey,  92  N.  Y.  581. 

207  Seeman  v.  Reiche,  N.  Y.  Daily  Reg.,  June  23,  1882. 

208  Ireland  v.  Nichols,  9  Abb.  Pr.  (N.  S.)  71,  40  How.  Pr.  85. 

208  Di  Lorenzo  v.  Di  Lorenzo,  78  App.  Div.  577,  79  N.  Y.  Supp.  566. 


ft  2691  SECURITY  TO  STAY  PROCEEDINGS.  3781 


Art.   V.     Effect  of  Stay. 


such  transcript  was  procured  prior  to  the  stay  becoming  ef- 
fective.210 So  the  appointment  of  a  receiver  in  place  of  one 
appointed  before  judgment  but  who  declined  to  act  is  not  a 
violation  of  the  stay.211  So  the  stay  does  not  prevent  the  dis- 
charging of  a  receiver  appointed  pendente  lite  as  a  provisional 
remedy.212  And  the  stay  does  not  prevent  the  bringing  of  a 
new  action  against  joint  debtors  not  served  in  the  action  in 
which  the  judgment  appealed  from  was  obtained.213  Likewise, 
an  application  to  compel  delivery  of  books  belonging  to  a 
public  office  is  not  a  proceeding  in  the  court  below,  so  as  to 
violate  the  stay  on  an  appeal  from  a  judgment  of  ouster  in  an 
action  to  try  the  title  to  such  office.214  But  a  stay  on  appeal 
from  a  judgment  against  a  sheriff  for  an  escape  precludes  the 
granting  of  leave  to  sue  on  the  official  bond  of  the  sheriff.215 
So  a  stay  precludes  a  creditor's  suit  based  on  the  judgment 
appealed  from.216 

The  stay,  however,  cannot  undo  what  has  lawfully  been  done 
under  the  judgment  or  order  appealed  from.217  The  effect  of 
the  security  is  merely  to  stay  proceedings  as  of  the  time  when 
the  security  is  given.21s 

Pending  proceedings  are  not  vacated  or  discharged  but  are 
merely  suspended.  For  instance,  a  stay  does  not  discharge  a 
previous  levy  of  an  execution.219  So,  while  the  stay  ''sus- 
pends" supplementary  proceedings  based  on  the  judgment  or 
order  appealed  from,220  it  does  not  vacate  them. 

2ioBulkeley  v.  Keteltas,  5  Super.  Ct.    (3  Sandf.)   740. 
2ii  MacKellar  v.  Farrell,  29  State  Rep.  350.     • 

212  Ireland  v.  Nichols,  9  Abb.  Pr.  (N.  S.)  71,  40  How.  Pr.  85. 

213  Morey  v.  Tracey,  92  N.  Y.  581. 

214  Matter  of  Welch,  7  How.  Pr.  282. 

215  Matter  of  Chamberlain,   28  How.  Pr.   1. 

2i6  See  Smith  v.  Crocheron,  2  Edw.  Ch.  501,  which  so  held  as  to  writ 
of  error. 

217  Drake  v.  Rogers,  3  Hill,  604. 

2isRathbone  v.  Morris,  9  Abb.  Pr.  213. 

210  Matter  of  Berry,  26  Barb.  55;  Rathbone,  v.  Morris,  9  Abb.  Pr.  213. 

22ocowdrey  v.  Carpenter,  25  Super.  Ct.  (2  Rob.)  601,  17  Abb.  Pr.  107. 


3782  SECURITY  TO  STAY  PROCEEDINGS.  §2695 


Art.    V.      Rffect   of  Stay. 


§  2692.     On  appeal  from  judgment  for  rent. 

When  an  appeal  from  a  judgment  for  rent  has  been  per- 
fected and  execution  stayed,  the  appeal  stays  all  summary 
proceedings,  pending  or  otherwise,  to  recover  the  possession  of 
real  property  or  dispossess  tenants  therefrom,  based  on  the  fail- 
ure to  pay  the  rent  included  in  the  judgment  appealed  from.221 

§  2693.     On  appeal  from  judgment  awarding  injunction. 

Where  the  appellant  is  a  party  who  is  enjoined  by  the  judg- 
ment from  doing  specified  acts,  the  effect  of  a  stay  of  proceed- 
ings is  merely  to  prevent  the  collection  of  the  costs  awarded. 
The  injunction  continues  in  force  just  as  if  no  security  to  stay 
proceedings  had  been  given,  and  it  follows  that  the  appellant 
may  be  punished  by  contempt  proceedings  if  he  violates  the  in- 
junction pending  the  appeal.222  The  appellant's  remedy  is  to 
apply  to  a  court  or  a  judge  to  stay  the  injunction  pending  the 
appeal.223  The  granting  of  such  application  is  discretionary 
and  depends  on  the  particular  facts  in  each  case. 

§  2694.     On  appeal  to  court  of  appeals. 

After  an  appeal  to  the  supreme  court  from  an  inferior  court, 
where  the  execution  of  the  judgment  or  order  of  the  appellate 
court  is  stayed  by  an  appeal  to  the  court  of  appeals,  the  pro- 
ceedings in  the  court  below  or  before  the  judge  or  justice, 
who  made  the  order,  are  stayed  in  like  manner.224 

§  2695.     Power    to  discharge  levy  on  personal  property. 

The  Code  section  authorizing  the  court  to  discharge  a  levy 
on  personal  property  under  an  execution,  where  security  to 
stay  proceedings  has  been  given,  has  been  considered  in  a  pre- 
ceding volume.225 

221  Code  Civ.  Proc.  §  1310. 

222  Sixth  Ave.  R.  Co.  v.  Gilbert  El.  R.  Co.,  71  N.  Y.  430. 
22-!  See  post,  §  2701. 

224  Code  Civ.  Proc.  §  1345. 
226  Volume  3,  §  2175. 


fi  2697  SECURITY  TO  STAY  PROCEEDINGS.  3783 

Art.   V.     Effect  of  Stay. 

§  2696.    Power  to  suspend  lien  of  judgment  appealed  from. 

After  appeal  perfected  and  the  giving  of  security  to  stay- 
proceedings,  the  court  may  order  that  the  lien  of  the  judgment 
on  real  property  and  chattels  real  be  suspended  pending  the 
appeal.  This  matter  has  been  fully  treated  of  in  the  chapter 
on  Judgments,  in  a  preceding  volume.226 

§  2697.     Duration  of  stay. 

The  stay  is  terminated  when  the  order  on  the  decision  of  the 
appeal  is  entered  of  record.227 

226  Volume  3,  pp.  2803-2807. 

227  petrie  v.  Fitzgerald,  2  Abb.  Pr.  (N.  S.)  354.  Order  entered  on 
the  minutes  does  not  terminate  stay.  Mallory  v.  East  River  Ins.  Co., 
7  Hill,  192;  Ackroyd  v.  Ackroyd,  3  Daly,  38. 


CHAPTER  IX. 

EFFECT  OF  APPEAL. 

Scope  of  chapter,  §  2698. 

Time  when  jurisdiction  of  appellate  tribunal  attaches,  §  2699. 

Extent  of  jurisdiction  acquired  by  appellate  court,  §  2700. 

Appeal  from  part  of  judgment  or  order. 

Appeal  from  interlocutory  order. 

Proceedings  in  lower  court  after  taking  of  appeal,  §  2701. 

Opening  judgment  or  order. 

Amendment  of  judgment  or  order. 

Actions  relating  to  judgment  appealed  from. 

Renewal  of  motion. 

Motion  for  new  trial. 

Appointment  of  receiver. 

Injunction. 

Proceeding  with  trial  after  appeal  from  interlocutory  de- 
terminations. 

Matters  relating  to  record. 

Effect  on  judgment  or  order  appealed  from,  §  2702. 

Judgment  as  estoppel. 

Lien  of  judgment. 

Judgment  as  subject  of  set-off. 

Appeal  as  enlarging  time,  §  2703. 
Waiver  by  taking  of  appeal,  §  2704. 

§  2698.     Scope  of  chapter. 

It  is  the  purpose  of  this  chapter  to  review  the  questions  as 
to  the  respective  powers  of  the  appellate  court  and  the  court 
from  which  the  appeal  is  taken,  after  an  appeal  is  perfected. 
Questions  as  to  what  court  may  grant  a  stay  of  proceedings, 
the  necessity  therefor,  and  the  effect  thereof,  will  not  be  con- 
sidered, but  reference  should  be  made  to  a  preceding  chapter.1 
Furthermore,  the  Code  provisions,  already  noticed,  that  partic- 
ular applications  shall  be  made  to  the  appellate  court  or  to  the 
lower  court,  or  either,  will  not  be  reiterated. 

i  See  ante,  c.  9. 


§  2700  EFFECT  OF  APPEAL.  3JS5 


Jurisdiction   of  Appellate  Court. 


§  2699.     Time  when  jurisdiction  of  appellate  tribunal  attaches. 

Jurisdiction  of  the  cause  is  not  transferred  to  the  appellate 
tribunal  until  the  appeal  is  perfected,  i.  e.,  notice  of  appeal  is 
served  and  an  undertaking,  if  necessary,  given.2 


§  2700.    Extent  of  jurisdiction  acquired  by  appellate  court. 

In  all  matters  pertaining  to  the  appeal  itself,  and  to  the 
proper  hearing  thereof,  the  appellate  court  has  jurisdiction, 
and  also  in  regard  to  all  applications  which  by  statute  may  be 
made  to  the  appellate  court  after  taking  an  appeal,  but  as  to 
all  other  applications  the  case  is  regarded  as  still  pending  in 
the  lower  court,  and  such  applications  should  be  made  to  that 
court.3  For  instance,  a  special  term  cannot  strike  a  case  from 
the  calendar  of  the  appellate  division,4  nor  can  it  make  an 
order  declaring  an  appeal  abandoned,5  or  dismiss  an  appeal.0 
But  the  lower  court  is  not  deprived  of  jurisdiction  over  inci- 
dental matters  necessary  to  preserve  the  fruits  of  the  ultimate 
judgment  or  the  status  in  quo  of  the  parties.  For  instance,  it 
has  been  held  in  other  states  that  the  court  may  make  an  order 
providing  for  renting  or  leasing  the  property,  or  order  invest- 
ment of  funds  resulting  from  the  sale  of  property  under  an 
order  made  pending  litigation.7 

A  motion  to  compel  appellant's  attorneys  to  pay  costs,  per- 
sonally, on  the  dismissal  of  the  appeal,  cannot  be  made  in  the 
appellate  court  but  must  be  made  in  the  court  below  after  the 
judgment  has  been  there  entered.8 

Appeal  from  part  of  judgment  or  order.     Where  only 

part  of  a  judgment  or  order  is  appealed  from,  the  remainder 


2  Adams  v.  Fox,  27  N.  Y.  640.     It  is  not  necessary  that  the  return 
be  first  filed.     Id. 

s  People  ex  rel.  Hoffman  v.  Board  of  Education,  141  N.  Y.  86. 

*  Ziadi  v.  Interurban  St.  R.  Co.,  97  App.  Div.  137,  89  N.  Y.  Supp.  606. 

s  True  v.  Sibley,  61  State  Rep.  200,  29  N.  Y.  Supp.  704. 

o  See  post,  p.  3847. 

i  2  Cyc.  978. 

sStruffman  v.  Muller,  74  N.  Y.  594  (mem). 


3786  EFFECT  OF  APPEAL.  §  2701 

Jurisdiction  After  Taking  of  Appeal. 

is  iinat'tVeted  and  the  appellate  court  has  no  jurisdiction  over 

it.9 

Appeal  from  interlocutory  order.     An  appeal  from  an 

incidental  order  does  not  give  the  appellate  court  any  power 
over  the  final  judgment  which  has  been  entered  pending  the 
appeal.  For  instance,  an  appeal  from  an  order  denying  a  mo- 
tion to  change  the  place  of  trial,  does  not  give  the  appellate 
court  power  to  vacate,  on  an  original  application,  a  judgment 
afterwards  entered  in  the  action.10 

§  2701.     Proceedings  in  lower  court  after  taking  of  appeal. 

As  already  stated,  an  appeal  does  not  suspend  proceedings 
in  the  court  from  which  the  appeal  is  taken,  in  the  absence  of 
a  stay  of  proceedings.  "What  proceedings  are  permissible 
where  a  stay  of  proceedings  is  effected  has  already  been  con- 
sidered.11 

Opening  judgment  or  order.  The  opinions  are  in  con- 
flict as  to  whether,  pending  an  appeal  from  a  judgment  or 
order,  a  motion  can  be  made  in  the  lower  court  to  set  it  aside.12 

Amendment  of  judgment  or  order.     The  judgment  or 

order  appealed  from  may  be  amended  after  an  appeal  is  taken.13 
For  instance,  where  the  question  of  costs  is  not  presented  on 
appeal,  the  trial  court  retains  the  power  to  modify  its  judg- 
ment as  to  costs.14 

Actions    relating    to    judgment    appealed    from.     The 

taking  an  appeal  from  a  judgment  does  not  bar  an  action 
thereon,  nor  does  it  bar  an  action  on  a  special  agreement  to  be 
answerable  for  the  judgment.15 

o  See  ante,  §  2578. 

"Veeder  v.  Baker,  83  N.  Y.  163. 

ii  See  ante,  §  2691. 

12  That  a  motion  lies,  see  Belmont  v.  Erie  R.  Co.,  52  Barb.  637,  and 
Strong  v.  Hardenburgh,  25  How.  Pr.  438.  That  a  motion  does  not 
lie,  see  Tinkey  v.  Langdon,  60  How.  Pr.  180. 

is  Guernsey  v.  Miller,  80  N.  Y.  181;  National  City  Bank  v.  New  York 
Gold  Exch.  Bank,  97  N.  Y.  645. 

14  Genet  v.  Delaware  &  Hudson  Canal  Co.,  136  N.  Y.  217. 

is  Rice  v.  Whitlock,  16  Abb.  Pr.  225. 


2701  EFFECT  OF  APPEAL.  37S7 

Proceedings  in  Lower  Court. 

Renewal  of  motion.     It  has  been  held  that  a  second  mo- 


tion for  the  same  relief  can  be  made  pending  an  appeal  taken 
from  a  denial  of  the  first  motion,16  but  it  has  also  been  held 
that  by  appealing  from  an  order  denying  a  motion  with  leave 
to  renew  the  same,  the  appellant  is  precluded  from  taking  ad- 
vantage of  the  leave  to  renew.17 

Motion  for  new  trial.     The  pendency  of  an  appeal  from 

the  judgment  is  no  bar  to  a  motion  for  a  new  trial  in  the  court 
below.ls  Furthermore,  a  judge  at  special  term  may  entertain 
a  formal  motion  for  a  new  trial  though  he  has  denied  a  motion 
therefor  on  his  minutes  and  an  appeal  from  such  denial  is  pend- 
ing.19 

Appointment  of  receiver.     A  receiver  may  be  appointed, 

pending  an  appeal,  to  preserve  the  property  involved.20 

Injunction.  "Where  a  perpetual  injunction  has  been  de- 
nied, the  court  has  no  power  to  grant  one  pending  an  appeal.21 

Proceeding1  with  trial  after  appeal  from  interlocutory 

determinations.  An  appeal  from  an  order  denying  a  motion  to 
frame  issues  for  trial  by  a  jury  does  not  require  a  delay  of  the 
trial,  in  the  absence  of  a  stay  of  proceedings.22  It  is  proper  to 
notice  a  case  for  trial  in  the  lower  court,  after  an  appeal  from 
an  interlocutory  judgment,  where  there  is  no  stay  of  proceed- 
ings.23 

Matters  relating  to  record.     The  lower  court  does  not, 

by  reason  of  the  appeal,  lose  its  jurisdiction  to  do  anything  for 

10  Benedict  &  B.  Mfg.  Co.  v.  Thayer,  20  Hun,  547. 

17  Harrison  v.  Neher,  9  Hun,  127. 

is  Henry  v.  Allen,  147  N.  Y.  346;  Smith  v.  Lidgerwood  Mfg.  Co.,  60 
App.  Div.  467,  69  N.  Y.  Supp.  975;  Vernier  v.  Knauth,  7  App.  Div.  57, 
3S  N.  Y.  Supp.  784. 

in  Schmidt  v.  Cohn,  12  Daly,  134. 

20  Colwell  v.  Garfield  Nat.  Bank,  4  N.  Y.  Supp.  5. 

2i  Campbell  &  Thayer  Co.  v.  Frost,  24  Misc.  87,  52  N.  Y.  Supp.  487. 

22  Where  motion  was  denied  with  leave  to  renew,  and  defendant  ap- 
pealed instead  of  renewing  the  motion,  it  was  held  proper  to  refuse 
to  delay  the  trial  until  a  decision  on  the  appeal.  Smith  v.  Fleischman, 
23  App.  Div.  355,  48  N.  Y.  Supp.  234. 

"Ward  v.  Smith,  103  App.  Div.  375. 


3788  EFFECT  OF  APPEAL.  g  2701 

Proceedings  in  Lower  Court. 

the  presentation  of  the  case  in  the  appellate  court.  A  court  of 
record  has  inherent  power  to  correct  its  own  record  by  a  nunc 
pro  tunc  order,  even  after  an  appeal  is  taken,  since,  though  it 
loses  jurisdiction  of  the  case,  it  does  not  of  the  record.-4  It  is 
well  settled  that  the  supreme  court  has  power,  after  an  appeal 
to  the  court  of  appeals,  to  authorize  an  amendment  of  its  record 
in  order  that  the  same  may  be  made  to  speak  the  truth  of  all  the 
facts  appearing  before  it.25  This  authority  is  frequently  exer- 
cised, especially  by  permitting  a  statement  that  the  determina- 
tion of  the  appellate  division  was  on  the  law  or  on  the  facts  or 
on  both  the  law  and  the  facts.20  There  is  no  authority,  how- 
ever, it  would  seem,  for  the  supreme  court,  after  the  case  is  fi- 
nally disposed  of  by  the  court  of  appeals,  to  permit  an  amend- 
ment of  its  record.27  So  where  a  case  has  been  argued  and 
submitted  in  the  court  of  appeals,  and  a  decision  reached,  some 
years  after  the  decision  of  the  appellate  division,  the  court  of 
appeals  will  not  grant  a  request  to  suspend  its  decision  to  give 
an  opportunity  to  apply  to  the  lower  court  for  an  order  show- 
ing a  reversal  on  the  facts  as  well  as  on  the  law.28  The  power 
to  correct  the  record  does  not,  however,  authorize  the  allow- 
ance of  a  new  record.  The  theory  on  which  amendments  to 
records  are  made  by  the  trial  court,  after  an  appeal  is  taken, 
is  that  a  new  record  is  not  made  but  that  an  existing  record  is 
so  corrected  as  to  bear  true  evidence  of  what  actually  oc- 
curred. Where  a  record  is  changed  after  the  appeal  is  per- 
fected, the  change  is  unauthorized  and  ineffective  unless  there 
was  something  actually  existing  in  the  past  which  made  a 
change  necessary  in  order  to  a  full  or  accurate  expression  of 

21  People  ex  rel.  Hoffman  v.  Board  of  Education,  141  N.  Y.  86.  Ap- 
pellate court  cannot  correct  the  record.  People  v.  Hoch,  150  N.  Y. 
291,  305,  566;  Pratt  v.  Baker,  88  Hun,  301,  34  N.  Y.  Supp.  766;  Ropes 
v.  Arnold,  85  Hun,  619,  32  N.  Y.  Supp.  911. 

25  National  City  Bank  v.  New  York  Gold  Exch.  Bank,  97  N.  Y.  645. 

26  See  post,  §  2824. 

27  Drake  v.  New  York  Iron  Mine,  38  App.  Div.  71,  55  N.  Y.  Supp.  920, 
in  which  case  leave  to  file  conclusions  of  law  presented  and  referred 
by  the  trial  judge  and  directing  them  to  be  annexed  to  the  judgment- 
roll,  was  reversed. 

28  Hamlin  v.  Sears,  82  N.  Y.  327. 


ft  2702  EFFECT  OF  APPEAL.  3789 

Effect  on  Judgment  or  Order  Appealed  From. 

the  truth.20  The  record  cannot  be  amended,  by  the  lower 
court,  pending  an  appeal,  so  as  to  make  it  contain  matters  not 
before  the  trial  court  at  the  time  the  judgment  or  order  ap- 
pealed from  was  rendered.30 

It  has  been  held  that  the  trial  court  has  no  power  to  strike 
from  the  record  on  appeals  an  affidavit  specified  in  the  order 
appealed  from  as  one  of  the  motion  papers  on  which  the  order 
was  granted,  since  the  remedy,  if  the  printed  papers  were  not 
the  papers  read  before  the  trial  court,  was  to  apply  to  the  ap- 
pellate court  to  correct  the  papers.31 

Where  an  appellant  desires  an  extension  of  time  to  serve 
his  appeal  papers,  he  must  apply  to  the  lower  court  and  not  to 
the   appellate   court.32 

§  2702.     Effect  on  judgment  or  order  appealed  from. 

The  judgment  or  order  appealed  from  is  not  annulled  by  the 
appeal. 

Judgment  as  estoppel.     An  appeal   from  a  judgment 

does  not  suspend  its  operation  as  an  estoppel.33 

Lien  of  judgment.  The  lien  of  a  judgment  is  not  im- 
paired by  an  appeal 34  except  where  the  court,  on  motion,  orders 
a  suspension  of  the  lien.35 

Judgment  as  subject  of  set-off.    An  appeal  suspends  the 

right  to  set-off  the  judgment  appealed  from  against  another 
judgment,30  or  against  costs  of  a  motion  in  the  same  suit.37 

2»  Elliott,  App.  Proc.  p.  464. 

so  Matter  of  Baker,  54  App.  Div.  21,  66  N.  Y.  Supp.  242. 
3i  People  ex  rel.  Mulligan  v.  Collis,  8  App.  Div.  618,  40  N.  Y.  Supp. 
934. 

32  Wetter  v.  Erichs,  21  App.  Div.  475,  47  N.  Y.  Supp.  68S;  Rothschild 
v.  Rio  Grande  Western  R.  Co.,  9  App.  Div.  406,  41  N.  Y.  Supp.  293. 

33  Parkhurst  v.  Berdell,  110  N.  Y.  386. 

3*  Matter  of  Berry,  26  Barb.  55.  But  a  reversed  judgment,  pending 
a  further  appeal,  is  not  a  lien.     Foot  v.  Dillaye,  65  Barb.  521. 

-'Volume  3,  p.  2806. 

3«DeCamp  v.  Thomson,  159  N.  Y.  444;  Pierce  v.  Tuttle,  51  How.  Pr. 
193. 

37  Hardt  v.  Schulting,  24  Hun,  345. 


3790  EFFECT  OF  APPEAL.  g  270-A 

Appeal  as  Enlarging  Time. 

§  2703.     Appeal  as  enlarging  time. 

There  are  various  Code  provisions  which  provide  that  the 
time  during  which  proceedings  are  stayed  by  an  appeal  shall 
not  be  counted  in  computing  the  time  within  which  an  act  must 
be  performed.  These  provisions,  however,  relate  only  to  an 
appeal  which,  by  the  giving  of  an  undertaking  or  otherwise, 
operates  as  a  stay  of  proceedings.  An  appeal  from  an  order 
granting  a  favor  to  the  party  appealing  does  not  enlarge  the 
time  within  which  the  favor  is  limited.38 

§  2704.     Waiver  by  taking  of  appeal. 

Taking  an  appeal  waives  an  irregularity  in  the  mode  of  en- 
tering judgment.39  It  does  not,  however,  waive  the  right  to 
move  for  a  retaxation  of  costs  included  in  the  judgment  ap- 
pealed from,40  nor  the  taxing  of  costs  against  an  executor  or  ad- 
ministrator without  order  of  court,  in  a  case  where  an  order 
is  necessary  to  entitle  the  party  to  costs,  especially  where  the 
costs  were  adjusted  after  the  appeal  was  taken.41 

3s  Ferry  v.  Bank  of  Central  New  York,  9  Abb.  Pr.  100. 

39  City  of  New  York  v.  Lyons,  1  Daly,  296,  24  How.  Pr.  280. 

40  Volume  3,  p.  3036. 

•41  Howe  v.  Lloyd,  9  Abb.  Pr.   (N.  S.)   259. 


CHAPTER  X. 
PAPERS  ON  APPEAL. 

ART.  I.  APPEAL  TO  COURT  OF  APPEALS. 

Contents  of  return  on  appeal  from  final  judgment,  §  2705. 

Contents  of  return  on  appeal  from  order,  §  2706. 

Certification,  §  2707. 

Person  to  send  papers,  §  2708. 

Time  for  transmission,  §  2709. 

Filing,  §  2710. 

Procedure  on  failure  to  file  return,  §  2711. 

Defects  in  return,  §  2712. 

Case,  §  2713. 

Printing. 

Filing  of  copies. 

Service  on  attorney  for  adverse  party. 

Case  on  appeal  from  judgment  on  verdict  subject  to  opinion 
of  the  court,   §   2714. 


ART.    II.     APPEAL    TO    APPELLATE    DIVISION     FROM    TRIAL    OR 
SPECIAL  TERM. 

General  considerations,  §  2715. 
Party  to  furnish  papers,  §  2716. 
Contents  of  record,  §  2717. 

Opinion  of  court  below. 

Statement  of  facts  required  by  rule  41. 

Ordering  case  and  exceptions  filed,   §  2718. 
Indexing  the  case,  §  2719. 
Certification  of  papers,  §  2720. 
Filing  of  papers,  §  2721. 

Time. 

Service,  §  2722. 

Procedure  on  failure  to  file  or  serve,  §  2723. 

Delivery  of  copies  before  argument,  §  2724. 

Separate  records,  §  2725. 

Conclusiveness,  §  2726. 

Defects  in  record,  §  2727. 


3792  PAPERS  ON  APPEAL.  R  2700 

Art.  I.     Appeal  to  Court  of  Appeals. 

ART.  III.     APPEAL  TO  SUPREME  COURT  FROM  INFERIOR  COURT. 

Return,  §  2728. 

Certified  "copies  of  papers. 

Appeal  from  city  court  of  New  York,  §  2729. 

ART.  I.   APPEAL  TO  COURT  OF  APPEALS. 

§  2705.     Contents  of  return  on  appeal  from  final  judgment. 

On  appeal  from  a  final  judgment,  the  return  consists  of  a 
copy  of  the  judgment  roll  and  of  the  case  and  notice  of  excep- 
tions, if  any,  filed  after  the  entry  of  judgment,  and  a  certified 
copy,  of  the  judgment  given  thereon  and  of  the  notice  of  ap- 
peal.1 

The  contents  of  the  judgment  roll  has  been  stated.2  "When 
judgment  of  affirmance  is  rendered  upon  the  appeal  to  the  ap- 
pellate division,  the  "judgment  roll  consists  of  a  copy  of  the 
judgment  annexed  to  the  papers,  upon  which  the  appeal  was 
heard.  Where  subsequent  proceedings  are  taken,  at  the  special 
term  or  trial  term,  before  the  entry  of  final  judgment,  the 
judgment  roll  must  also  contain  the  proper  papers  relating 
thereto."3 

The  case  made  on  the  first  trial  is  not  a  proper  part  of  the 
record  on  an  appeal  from  the  judgment  on  a  second  trial.4 

§  2706.     Contents  of  return  on  appeal  from  order. 

On  an  appeal  from  an  order,  or  a  part  of  an  order,  the  re- 
turn consists  of  a  certified  copy  of  the  notice  of  appeal,  of  the 
order,  and  of  the  papers  on  which  the  order  was  founded.5 
Unnecessary  and  superfluous  papers  need  not  be  printed,  how- 
ever.6 

1  Code  Civ.  Proc.  §  1315.  Record  must  be  practically  the  same  as 
used  in  appellate  division.  New  York  Cable  Co.  v.  City  of  New  York, 
104  N.  Y.  1,  39;   Hobart  v.  Hobart,  85  N.  Y.  637. 

2  Vol.  3,  pp.  2787-2789. 

3  Code  Civ.  Proc.  §  1354. 

*  Wilcox  v.  Hawley,  31  N.  Y.  648. 

e  Code  Civ.  Proc.  §  1315. 

c  See  Weseman  v.  Wingrove,  85  N.  Y.  353,  358,  and  see  post,  §  2717. 


§  2707  papers  ON  appeal.  3793 


Art.  I.     Appeal  to  Court  of  Appeals. 


§  2707.     Certification. 

Prior  to  1890,  section  1315  of  the  Code  required  the  return 
on  an  appeal  from  a  final  judgment  to  consist  of  a  "certified" 
copy  of  the  notice  of  appeal,  judgment  roll,  etc.  In  1890  the 
Code  was  amended  so  as  to  require  a  copy  of  the  judgment 
roll,  case,  etc.,  and  a  "certified"  copy  of  the  judgment  and  of 
the  notice  of  appeal. 

Section  3301  of  the  Code,  prior  to  1890,  provided  that  "where 
the  attorneys  for  all  the  parties  interested,  other  than  parties  in 
default,  or  against  whom  a  judgment  or  final  order  has  been 
taken,  and  is  not  appealed  from,  stipulate  in  writing  that  a 
copy  of  any  paper  whereof  a  certified  copy  is  required  by  [the 
Code],  the  stipulation  takes  the  place  of  a  certificate,  as  to  the 
parties  so  stipulating,  and  the  clerk  is  not  required  to  certify 
the  same,  or  entitled  to  any  fees  therefor."  In  1890  section 
3301  was  amended  hy  adding  a  provision  that  a  paper  so 
proved  by  stipulation  be  received  by  the  clerks  of  all  the  courts 
and  by  the  courts,  and  be  used  or  filed  with  the  same  force  and 
effect  as  if  certified  by  a  clerk  of  the  court. 

It  is  the  practice  of  the  court  of  appeals  to  receive  and  file 
returns  not  certified  by  the  clerk  of  the  court  below,  when  ac- 
companied by  a  stipulation  of  the  attorneys,  but  since  section ' 
1315  of  the  Code  no  longer  requires  on  an  appeal  from  a  judg- 
ment "a  certified  copy  of  the  judgment  roll  and  of  the  case 
and  notice  of  exception,  if  any"  but  only  requires  "a  copy'* 
thereof,  it  has,  in  some  instances,  been  claimed  that  the  stipu- 
lation, authorized  by  section  3301,  that  a  paper  is  "a  copy  of 
any  paper  whereof  a  certified  copy  is  required,"  is  not  neces- 
sary in  so  far  as  the  judgment  roll,  case  and  notice  of  excep- 
tions, if  any,  are  concerned,  but  only  for  the  judgment  ap- 
pealed from  and  the  notice  of  appeal,  of  which  alone  a  "certi- 
fied" copy  is  now  required  by  section  1315  of  the  Code.7  It  is 
the  safer  practice,  however,  to  either  obtain  a  certified  copy, 
or  a  stipulation  that  the  paper  is  ;i  true  copy,  of  all  the  papers. 

On  an  appeal  from  an  "order,"  all  the  necessary  papers  must 
either  be  certified  or  stipulated  to  be  true  copies. 


i  Smith,  Ct.  of  App.  Pr.  16,  17. 
N.  Y.  Prac— 238. 


3701  PAPERS  ON  APPEAL.  §  27  LO 


Art.  I.     Appeal  to  Court  of  Appeals. 


A  statement  "return  certified  as  required  by  law"  is  not  a 
substitute  for  a  certificate  of  settlement  of  the  case.8 

Form  of  stipulation. 

LTitle  of  court  and  cause.] 

It  is  hereby  stipulated,  by  and  between  the  attorneys  for  the  parties 
herein,  pursuant  to  section  3301  of  the  Code  of  Civil  Procedure,  that 
the  foregoing  copies  are  true  and  correct  copies  of  the  judgment  roll, 
the  notice  of  appeal,  the  case  and  exceptions  herein,  and  the  judg- 
ment of  the  appellate  division,  as  filed  in  the  office  of  the  clerk  of 

county,  and  of  the  whole  thereof;  and  that  the  appeal  in  this 

case  be  heard  on  said  papers  without  certification  thereof,  which  is 
hereby  waived. 

[Date.]  [Signature  of  attorneys.] 

§  2708.     Person  to  send  papers. 

The  papers  constituting  the  return  are  to  be  transmitted  to 
the  appellate  court  by  the  clerk  on  whom  the  notice  of  appeal 
was  served.9 

§  2709.     Time  for  transmission. 

The  return  must  be  transmitted  to  the  appellate  court  within 
twenty  days  after  the  appeal  is  perfected,  i.  e.,  the  notice  of  ap- 
peal is  served  and  filed  and  an  undertaking  given.10 

A  judge  of  the  court  from  which  the  appeal  is  taken  has 
no  authority  to  extend  the  time  for  filing  the  return,11  except 
as  provided  for  by  statute  on  an  appeal  from  a  judgment  on  a 
verdict  subject  to  the  opinion  of  the  appellate  division.12 

,§  2710.     Filing. 

The  clerk  of  the  court  of  appeals  must  file  the  papers  trans- 
mitted to  him  as  constituting  the  return.13 

s  Matter  of  Bailey,  85  N.  Y.  629. 

o,  io  Code  Civ.  Proc.  §  1315. 

it  Mead  v.  Smith,  18  Wkly.  Dig.  221. 

12  Code  Civ.  Proc.  §  1339,  last  sentence. 

is,  i*  Code  Civ.  Proc.  §  1315. 


§  2713  PAPERS  ON  APPEAL.  3795 


Art.  I.     Appeal  to  Court  of  Appeals. 


§  2711.     Procedure  on  failure  to  file  return. 

If  the  appellant  fails  to  cause  the  return  to  be  transmitted 
within  the  twenty  days  allowed,  the  respondent  may  cause  the 
papers  to  be  transmitted,  and  may  tax  the  expense  thereof  as 
a  disbursement  if  he  recovers  costs.14  Or,  instead,  the  "re- 
spondent may,  by  notice  in  writing,  require  such  return  to  be 
filed  within  ten  days  after  the  service  of  the  notice,  and  if  the 
return  be  not  filed  in  pursuance  of  such  notice,  the  appellant 
shall  be  deemed  to  have  waived  the  appeal ;  and  on  an  affidavit 
proving  that  the  appeal  was  perfected,  and  the  service  of  such 
notice,  and  a  certificate  of  the  clerk  that  no  return  has  been 
filed,  the  respondent  may  enter  an  order  with  the  clerk  dismiss- 
ing the  appeal  for  want  of  prosecution,  with  costs;  and  the 
court  below  may  thereupon  proceed  as  though  there  had  been 
no  appeal."15  The  clerk,  on  receiving  from  the  respondent's 
attorney  the  affidavit  prescribed  by  this  rule,  will,  if  the  return 
has  not  been  filed,  make  a  certificate  to  that  effect,  and  enter, 
in  an  established  form,  the  proper  order  (which  need  not  be 
darfted  by  the  attorney),  and  furnish  a  certified  copy  thereof.16 

§  2712.     Defects  in  return. 

If  the  return  made  by  the  clerk  of  the  court  below  is  defec- 
tive, either  party  may,  on  an  affidavit  specifying  the  defect, 
and  on  notice  to  the  opposite  party,  apply  to  one  of  the  judges 
of  the  court  of  appeals  for  an  order  that  the  clerk  make  a 
further  return  without  delay.17 

The  respondent  cannot  return  the  case  and,  on  the  failure  to 
serve  another,  enter  an  order  dismissing  the  appeal.18 

§  2713.    Case. 

"In  all  calendar  causes  a  case  shall  be  made  by  the  appellant, 
which  shall  consist  of  a  copy  of  the  return,  and  the  reasons  of 

16  Rule  1  of  court  of  appeals. 

i«  Smith,  Ct.  of  App.  Pr.,  26. 

i?  Rule  2  of  the  court  of  appeals.  Documents  not  a  part  of  the  record 
in  the  appellate  division  cannot,  however,  be  ordered  added  by  the 
court  of  appeals.     State  v.  Cromwell,  104  N.  Y.  664. 

is  Bliss  v.  Hoggson,  84  N.  Y.  667. 


3796  PAPERS  ON  APPEAL.  §  2713 

Art.  I.     Appeal  to  Court  of  Appeals. — Case. 

the  court  below  for  its  judgment,  or  an  affidavit  that  the  same 
cannot  he  procured,  together  with  an  index  to  the  pleadings, 
exhibits,  depositions,  and  other  principal  matters.  Every  opin- 
ion in  the  cause  at  special  term,  as  well  as  at  the  appellate  di- 
vision of  the  supreme  court,  relating  to  the  questions  involved 
in  the  appeal,  is  included  by  the  foregoing  provision."  10 

In  short  the  case  consists  of  (1)  a  copy  of  the  return,  (2) 
opinions  or  certificate  that  there  are  none,  (3)  and  an  index. 

The  case  in  the  court  of  appeals  is  usually  referred  to  as  the 
"appeal  book." 

A  reference  to  the  volume  and  page  of  the  reports  in  which 
the  opinion  is  printed  is  not  a  compliance  with  this  rule  since 
the  opinion  itself  must  be  printed  in  full  in  the  case.20 

Printing.     "All  cases  and  points,  and  all  other  papers 

furnished  to  the  court  in  calendar  causes,  shall  be  printed  on 
white  paper,  as  provided  in  section  796  of  the  Code  of  Civil 
Procedure.  The  folio,  numbering  from  the  commencement  to 
the  end  of  the  case,  shall  be  printed  on  the  outer  margin  of  the 
page.  Small  pica  is  the  smallest  letter  and  most  compact  mode 
of  composition  which  is  allowed.  No  charge  for  printing  the 
papers  mentioned  in  this  rule  shall  be  allowed  as  a  disburse- 
ment in  a  cause  unless  the  requirements  of  the  preceding  sen- 
tence shall  be  shown,  by  affidavit,  to  have  been  complied  with 
in  all  papers  printed. ' ' 21 

Filing  of  copies.  Except  on  "appeals  from  orders  en- 
titled to  be  heard  as  motions,"  sixteen  copies  of  the  case  and 
points  must  be  filed  with  the  clerk  of  the  court  of  appeals  at 
least  twenty  days  before  the  case  is  placed  on  the  day  calen- 
dar.22 In  the  former  case,  the  sixteen  copies  must  be  delivered 
to  the  clerk  at  or  before  the  argument  or  submission  of  the  ap- 
peal.23 

Service  on  attorney  for  adverse  party.     ' '  Within  forty 

days  after  the  appeal  is  perfected,  the  appellant  shall  serve 

lfl  Rule  4  of  the  CQurt  of  appeals. 

20  Bastable  v.  City  of  Syracuse,  72  N.  Y.  64. 

-i  Rule  5  of  the  court  of  appeals. 

22  Rule  7  of  the  court  of  appeals. 

23  Smith,  Ct.  of  App.  Pr.  72c,  73. 


2713  PAPERS  ON  APPEAL.  3797 


Art.  I.     Appeal  to  Court  of  Appeals. — Case. 


three  printed  copies  of  the  case  on  the  attorney  of  the  adverse 
party.  If  he  fail  to  do  so,  the  respondent  may,  by  notice  in 
writing,  require  the  service  of  such  copies  within  ten  days  after 
service  of  the  notice,  and,  if  the  copies  be  not  served  in  pursu- 
ance of  such  notice,  the  appellant  shall  be  deemed  to  have 
waived  the  appeal ;  and  on  an  affidavit  proving  the  default  and 
the  service  of  such  notice,  the  respondent  may  enter  an  order 
with  the  clerk  dismissing  the  appeal  for  want  of  proscution, 
with  costs;  and  the  court  below  may  thereupon  proceed  as 
though  there  had  been  no  appeal. ' ' 2i 

This  rule  applies  to  an  entire  failure  to  serve  copies  of  a 
case.  The  remedy  for  service  of  copies  of  an  imperfect  case 
is  to  move  to  have  the  case  corrected  and  proper  copies  served 
or  the  appeal  dismissed.25  It  is  no  excuse  for  the  failure  to 
serve  copies  of  the  case  that  the  appellant  has  not  caused  the 
return  to  be  made  and  filed.26 

On  receipt  of  an  affidavit  from  the  respondent's  attorney, 
proving  the  default  and  service  of  notice,  the  clerk  will  enter 
the  proper  order  (which  need  not  be  drafted  by  the  attorney) 
dismissing  the  appeal,  with  costs,  and  will  transmit  a  certified 
copy  thereof  to  the  respondent's  attorney.  If  the  return  has 
been  filed,  a  remittitur  will  be  issued  and  transmitted  with  the 
order.27 

A  motion  to  reinstate  the  appeal  will  not  be  heard  where 
the  remittitur  has  been  sent  down,  judgment  entered  thereon 
and  execution  issued.2*5  It  has  been  held  that  the  default  ought 
not  to  be  opened,  as  a  matter  of  favor,  unless  there  is  some  rea- 
son to  think  that  the  judgment  so  obtained  is  not  in  strict  con- 
formity with  the  real  merits  and  equity  of  the  causes,29  though 
it  has  also  been  held  that  defaults  in  serving  copies  of  the  case 
will  be  opened  on  terms  where  no  delay  or  inconvenience  has 

24  Rule  6  of  the  court  of  appeals.     Formerly  rule  7. 
•  25  Bowers  v.  Tallmadge,  23  N.  Y.  166;  Bliss  v.  Hoggson,  84  N.  Y.  667. 
2e  Sage  v.  Volkening,  46  N.  Y.  448. 

27  Smith,  Ct.  of  App.  Pr.  50. 

28  Jones  v.  Anderson,  71  N.  Y.  599. 

29  Keuka  Nav.  Co.  v.  Holmes,  98  N.  Y.  655. 


3798  PAPERS  ON  APPEAL.  §  2715 

Art.  II.     Appeal  to  Appellate  Division. 

resulted  to  respondent  therefrom  and  it  appears  that  the  ap- 
peal "was  brought  in  good  faith.30 

§  2714.     Case  on  appeal  from  judgment  on  verdict  subject  to 
opinion  of  the  court. 

Where  an  appeal  to  the  court  of  appeals,  from  a  judgment, 
rendered  by  the  appellate  division,  upon  a  verdict  subject  to 
the  opinion  of  the  court,  has  been  perfected,  a  case,  containing 
a  concise  statement  of  the  facts,  of  the  questions  of  law  arising 
thereupon,  and  of  the  determination  of  those  questions  by  the 
appellate  division,  must  be  prepared  and  settled,  by  or  under 
the  direction  of  the  court  below,  and  annexed  to  the  judgment 
roll.  A  certified  copy  of  the  case  must  be  transmitted  to  the 
court  of  appeals  instead  of  the  case  upon  which  the  judgment 
of  the  court  below  was  rendered.  The  court  below,  or  a  judge 
thereof,  may  extend  the  time,  by  law,  within  which  the  papers 
must  be  transmitted  to  the  court  of  appeals,  for  the  purpose  of 
enabling  the  appellant  to  procure  the  case  to  be  prepared  or 
settled.31 

If  such  a  case  is  not  prepared,  the  appeal  will  be  dismissed,32 
unless  the  action  is  one  in  which  a  verdict  subject  to  the  opin- 
ion of  the  court  cannot  be  directed.33 


ART.   II.     APPEAL    TO    APPELLATE    DIVISION    FROM    TRIAL    OR 

SPECIAL  TERM. 

§  2715.     General  considerations. 

The  General  Rules  of  Practice  (rule  38)  specify  what  are 
enumerated  motions  and  then  states  that  all  other  motions  are 
non-enumerated  motions.  The  rule  is  confusing  because  it  in- 
cludes certain  "appeals"  as  enumerated  "motions."     It  should 

bo  Waterman  v.  Whitney,  7  How.  Pr.  407. 
3i  Code  Civ.  Proc.  §  1339. 

32  Reinmiller  v.  Skidmore,  59  N.  Y.  661;  People  v.  Featherly,  131  N. 
Y.  597. 

33  Cowenhoven  v.  Ball,  118  N.  Y.  231.  When  verdict  subject  to  opin- 
ion of  court  may  be  directed,  see  vol.  2,  p.  2288. 


«  2717  PAPERS  ON  APPEAL.  3799 

Art.  II.     Appeal  to  Appellate  Division. 

be  rewritten  and  made  more  specific  so  that  there  would  be  no 
question  as  to  what  it  means.  The  importance  of  distinguishing 
between  the  kinds  of  orders  is  emphasized  by  rule  41  of  the 
General  Rules  of  Practice  which  differentiates  between  the  two 
orders  in  so  far  as  the  record  on  appeal  is  concerned.  Rule 
41  could  be  much  simplified  by  first  stating  the  rules  applicable 
to  the  record  on  all  appeals  and  then  referring  separately  to 
the  record  on  appeals  from  final  judgments,  interlocutory  judg- 
ments, enumerated  orders,  and  non-enumerated  orders. 

The  rules  relating  to  the  preparation  of  a  case,  or  case  and 
exceptions,  have  been  set  forth  in  a  preceding  volume.34 

§  2716.     Party  to  furnish  papers. 

The  papers  must  be  furnished  by  the  appellant.35 

§  2717.     Contents  of  record. 

The  Code  provides  that  an  appeal  to  the  appellate  division 
from  a  final  judgment  of  the  supreme  court  must  be  heard 
upon  a  certified  copy  of  the  notice  of  appeal,  of  the  judgment 
roll,  and  of  the  case  or  notice  of  exceptions,  if  any,  filed,  as 
prescribed  by  law  or  the  general  rules  of  practice,  after  the 
entry  of  the  judgment,  and  either  before  or  after  the  appeal  is 
taken.36  The  judgment  roll  should  immediately  follow  the 
notice  of  appeal  and  the  case  and  exceptions  should  be  last.37 

34  Vol.  3,  pp.  2651-2682. 

35  Rule  41  of  the  General  Rules  of  Practice  provides  that  the  papers 
must  be  furnished  by  appellant  except  on  appeals  from  nonenumerated 
motions,  but  it  is  submitted  that,  notwithstanding  that  the  language 
is  clear,  it  was  not  intended  to  prescribe  a  different  rule  for  appeals 
from  nonenumerated  motions. 

36  Code  Civ.  Proc.  §  1353,  Rule  41  of  the  General  Rules  of  Practice. 
On  an  appeal  from  the  judgment  entered  on  nonsuit  or  general  verdict, 
where  questions  of  fact  are  submitted  to  the  jury  before  deciding  the 
motion  for  a  nonsuit  or  directed  verdict,  such  special  or  general  verdict 
shall  form  a  part  of  the  record.  Code  Civ.  Proc.  §  1187.  Appeal  has 
been  dismissed  where  record  contained  no  judgment  roll.  Reid  v.  City 
of  New  York,  50  State  Rep.  758. 

37  Brady  v.  Powers,  105  App.  Div.  476,  94  N.  Y.  Supp.  259. 


3gQQ  PAPERS  ON  APPEAL.  §  2717 

Art.  II.     Appeal  to  Appellate  Division. 


It  also  provides  that  such  an  appeal  from  an  interlocutory 
judgment,  or  from  an  order,  must  be  heard  on  a  certified  copy 
of  the  notice  of  appeal,  and  of  the  papers  used  before  the 
court,  judge  or  justice,  on  the  hearing  of  the  demurrer,  appli- 
cation, or  motion,  as  the  case  requires.38  If  no  judgment  was 
entered,  the  record,  on  an  appeal  from  an  enumerated  order, 
must  also  contain  the  pleadings  and  the  minutes  of  trial.39 

The  General  Rules  of  Practice  provide  that  the  papers  in  all 
"appeals  from  non-enumerated  motions"  shall  consist  of 
printed  copies  of  the  papers  which  were  used  in  the  court  be- 
low, and  are  specified  in  the  order,  certified  by  the  proper  clerk, 
or  stipulated  by  the  parties  to  be  true  copies  of  the  original, 
and  of  the  whole  thereof.40 

Only  the  papers  recited  in  the  order  appealed  from  will  be 
considered.41  It  follows  that  additional  affidavits  served  after 
the  making  of  the  order,  though  served  by  leave  of  court, 
should  not  be  embodied  in  the  record  as  they  will  not  be  re- 
viewed.42 If  all  the  motion  papers  are  not  contained  in  the 
record,  and  neither  party  lias  taken  any  steps  to  correct  the 
record  nor  has  objected  thereto,  the  appeal  will  be  dismissed.43 

38  Code  Civ.  Proc.  §  1353.  See,  also,  rule  41  of  the  General  Rules  of 
Practice.  That  rule  applies  to  appeal  from  order  confirming  report  of 
arbitrators,  see  Matter  of  Poole,  32  Hun,  215. 

so  Rule  41  of  the  General  Rules  of  Practice. 

40  Rule  41  of  the  General  Rules  of  Practice.  Case  and  exceptions 
are  not  required.  Matter  of  Gowdey's  Estate,  101  App.  Div.  275,  91  N. 
Y.  Supp.  662. 

4i  Thomson  v.  Fairfield,  67  Hun,  648,  21  N.  Y.  Supp.  712.  See,  also, 
Matter  of  Gowdey's  Estate,  101  App.  Div.  275,  91  N.  Y.  Supp.  662. 

42  Wells,  Fargo  &  Co.  v.  Wellsville,  C.  &  P.  C.  R.  Co.,  12  App.  Div. 
47,  42  N.  Y.  Supp.  225.  An  affidavit  printed  at  the  end  of  an  appeal 
book,  which  does  not  purport  to  have  been  verified  until  the  day  after 
the  order  appealed  from  was  entered,  is  not  properly  a  part  of  the  rec- 
ord, and  hence  cannot  be  considered  by  the  appellate  court.  Cameron 
v.  White,  92  N.  Y.  Supp.  381. 

43  Whipple  v.  Ripson,  29  App.  Div.  70,  51  N.  Y.  Supp.  635.  Levey  v. 
Dennett,  25  Misc.  768,  55  N.  Y.  Supp.  612;  Niles  v.  New  York  Cent.  & 
H.  R.  R.  Co.,  13  App.  Div.  549,  43  N.  Y.  Supp.  734;  Cameron  v.  White, 
92  N.  Y.  Supp.  381.     Record  not  containing  judgment-roll  which  was 


§2717 


PAPERS  ON  APPEAL.  3801 


Art.  II.     Appeal  to  Appellate  Division. 


It  would  seem,  however,  and  it  is  so  held  by  the  court  of  ap- 
peals, that  the  rule  is  not  to  be  so  strictly  construed  as  to  com- 
pel the  printing  of  unnecessary  and  superfluous  papers ; 44  and 
the  General  Rules  of  Practice  provide  that  "where,  upon  non- 
enumerated  motions,  voluminous  documents  have  been  used 
which  are  material  only  as  to  the  fact  of  their  existence,  or  as 
to  a  small  part  of  their  contents,  the  parties  may,  by  stipula- 
tion, or  the  court  or  judge  below  may,  upon  notice,  settle  a 
statement  respecting  the  same,  or  the  parts  thereof  to  be  re- 
turned upon  the  appeal  from  the  order,  to  be  used  in  place  of 
the  original  documents."  45  This  power  to  excuse  the  printing 
of  clearly  immaterial  and  irrelevant  portions  of  the  papers  on 
which  a  motion  is  heard  should,  however,  be  sparingly  exer- 
cised.46 It  has  been  held  that  where  the  order  specifies  no  mo- 
tion papers,  the  return  does  not  show  that  the  printed  papers 
were  read  or  used  on  the  motion,  and  there  is  no  stipulation  by 
the  attorneys,  the  order  will  be  reversed.47  If  the  printed  pa- 
pers on  appeal  are  not  the  motion  papers  recited  in  the  order, 
the  proper  remedy  of  the  party  aggrieved  is  to  apply  to  the  ap- 
pellate court  to  correct  the  printed  papers.4S  But  if  the  spec- 
ial term  improperly  strikes  out  and  refuses  to  consider  papers 
properly  before  it  on  a  motion,  the  moving  party,  on  an  appeal 
from  the  order,  may  print  them  so  that  the  appellate  court 
may  decide  whether  the  refusal  to  consider  them  was  proper.49 

one  of  the  motion  papers.     Binghamton  Trust  Co.  v.  Grant,  65  App.  Div. 
178,  72  N.  Y.  Supp.  580. 

44-Weseman  v.  Wingrove,  85  N.  Y.  353,  358. 

45  Rule  34  of  the  General  Rules  of  Practice.  See  Wheeler  v.  Falconer, 
30  Super.  Ct.  (7  Rob.)  45,  46,  which  held  that  printing  of  papers  could 
be  dispensed  with  only  by  order  of  court. 

46  Manhattan  R.  Co.  v.  Taber,  7  Misc.  347,  27  N.  Y.  Supp.  860.  Fol- 
lowed in  City  Real  Estate  Co.  v.  Gaylor,  31  Misc.  105,  64  N.  Y.  Supp. 
1066. 

47  Matter  of  Burnham,  64  App.  Div.  596,  72  N.  Y.  Supp.  300. 

48  So  long  as  the  order  remains  in  the  form  in  which  it  is  entered, 
the  lower  court  has  no  right  to  require  the  appeal  to  be  heard  on  differ- 
ent or  other  papers  than  those  on  which  the  motion  was  decided.  Peo- 
ple ex  rel.  Mulligan  v.  Collis,  8  App.  Div.  61S,  40  N.  Y.  Supp.  934. 

49  Evans  v.  Silbermann,  7  App.  Div.  139,  141,  40  N.  Y.  Supp.  298. 


3802  PAPERS  ON  APPEAL.  §  2718 

Art.  II.     Appeal  to  Appellate  Division. 

Each  affidavit  or  other  paper  printed,  upon  an  appeal  from 
an  order  made  on  a  non-enumerated  motion,  shall  be  preceded 
by  the  statement  of  what  it  is  and  on  whose  behalf  it  is  read.1'0 

Opinion  of  court  below.     The  record  must  also  contain 

the  opinion  of  the  court  below,  or  an  affidavit  that  no  opinion 
was  given,  or,  if  given,  that  a  copy  could  not  be  procured.  This 
applies  irrespective  of  whether  the  appeal  is  from  a  judgment, 
an  order  made  on  an  enumerated  motion  or  an  order  made  on 
a  non-enumerated  motion.51  The  opinion  being  a  part  of  the 
record,  it  may  be  referred  to  the  same  as  any  other  paper  in 
the  record,52  though  it  would  seem  that  the  court  cannot  re- 
verse for  error  appearing  in  the  opinion  but  not  otherwise  in 
the  record.53 

Statement  of  fact  required  by  rule  41.  Except  on  ap- 
peals from  non-enumerated  motions,  there  shall  be  prefixed  to 
the  papers  a  statement  showing  the  time  of  the  beginning  of 
the  action  or  special  proceeding,  and  of  the  service  of  the  re- 
spective pleadings;  the  names  of  the  original  parties  in' full ; 
and  any  changes  in  the  parties,  if  such  has  taken  place.54 

§  2718.     Ordering  case  and  exceptions  filed. 

The  Code  provides  that  if  "the  appeal  is  from  a  judgment 
the  printed  case  and  exceptions  must  be  ordered  filed  by  the 
justice  or  referee  before  whom  the  case  was  tried."  5r>  It  will 
be  noticed  that  the  Code  requires  an  order  to  file  the  case  and 
exceptions  when  the  appeal  is  from  a  judgment  but  makes  no 
like  provision  as  to  appeals  from  orders.  It  is  held,  however, 
that  it  was  the  plain  intention  of  this  Code  section  to  require 
the  judge,  in  all  actions  where  an  appeal  is  based  on  a  case, 
to  order  the  printed  papers  on  file.56 

50  Rule  43  of  General  Rules  of  Practice. 
si  Rule  41  of  General  Rules  of  Practice. 

52  Bryant  v.  Allen,  54  App.  Div.  500,  504,  67  N.  Y.  Supp.  89.     Followed 
in  Grossman  v.  Wyckoff,  64  App.  Div.  554,  558,  72  N.  Y.  Supp.  337. 
63  See  post,  §  2784. 
■'  Rule  41  of  General  Rules  of  Practice. 

55  Code  Civ.  Proc.  §  1353. 

56  Odendall  v.  Haebler,  91  App.  Div.  372,  86  N.  Y.  Supp.  599. 


«  2721  PAPERS  ON  APPEAL.  3803 

Art.  II.     Appeal  to  Appellate  Division. 

§  2719.    Indexing  the  case. 

The  case  must  be  indexed,  and  the  index  of  the  exhibits  must 
concisely  indicate  the  contents  or  nature  of  each  exhibit.57 
The  cause  has  been  stricken  from  the  calendar  because  of  fail- 
ure to  index  the  case.58 

§  2720.     Certification  of  papers. 

All  the  copies  of  papers  necessary  to  constitute  the  record, 
except  a  copy  of  the  opinion  of  the  lower  court,  must  be  certi- 
fied by  the  proper  clerk  or  be  stipulated  by  the  parties  to  be 
true  copies  of  the  original.59  Section  3301  of  the  Code,  as  al- 
ready set  forth,60  authorizes  a  stipulation  in  place  of  a  certifi- 
cate.61 

§  2721.     Filing  of  papers. 

"Unless  the  appellate  division  shall  in  a  special  case  other- 
wise direct,  before  an  appeal  shall  be  placed  on  the  calendar, 
the  appellant  shall  file  with  the  clerk  of  the  appellate  division 
the  case  and  exceptions  or  the  other  papers,  on  which  the  ap- 
peal shall  be  heard,  printed  as  required  by  the  rules  of  prac- 
tice."62 

Time.  Except  on  appeals  from  orders  made  on  non- 
enumerated  motions,63  the  printed  record  must  be  filed  in  the 
office  of  the  clerk  of  the  appellate  division  within  twenty  days 
after  the  appeal  is  taken,  except  that  where  it  is  necessary 
to  make  a  case  or  case  and  exceptions  after  the  appeal  shall 
have  been  taken,  the  papers  shall  be  filed  within  twenty  days 
after  the  settlement  and  filing  of  the  case.64     On  appeals  from 

5T  Rule  43  of  General  Rules  of  Practice. 

58  Reid  v.  City  of  New  York,  50  State  Rep.  758,  21  N.  Y.  Supp.  719. 

so  Rule  41  of  General  Rules  of  Practice. 

eo  See  ante,  §  2707. 

oi  Form  of  stipulation,  see  ante,  §  2707. 

62  Code  Civ.  Proc.  §  1353. 

63  What  are  nonenumerated  motions,  see  vol.  1,  pp.  17,  168. 

e*  Rule  41  of  the  General  Rules  of  Practice.  Time  for  making  and 
service  of  case,  see  vol.  3,  p.  2656. 


3S04  PAPERS  ON  APPEAL.  §  2724 

Art.  II.     Appeal  to  Appellate  Division. 

orders  made  on  non-enumerated  motions,  the  papers  shall  be 
filed  with  the  clerk  within  fifteen  days  after  the  appeal  is 
taken.66 

Extensions  of  time  to  file  and  serve  appeal  papers,  on  an  ap- 
peal to  the  appellate  division,  cannot  be  obtained  from  the  ap- 
pellate division  but  the  motion  must  be  made  in  the  court  be- 
low.06 


§  2722.     Service. 

Three  printed  copies  of  the  papers  must  be  served  on  the  at- 
torney for  the  respondent  at  the  same  time  that  the  papers  are 
filed  with  the  clerk.07 

§  2723.     Procedure  on  failure  to  file  or  serve. 

If  the  papers  constituting  the  record  are  not  filed  and  served, 
as  provided  by  General  Rule  41,  by  the  appellant,  respondent 
may  move  the  court  on  three  days'  notice,  on  any  motion  day, 
for  an  order  dismissing  the  appeal,  or  for  a  judgment  in  his 
favor,  as  the  case  may  be.08  If  the  appeal  is  from  an  order 
made  on  a  non-enumerated  motion,  the  motion  must  be  to  dis- 
miss the  appeal  as  that  is  the  only  relief  which  may  be 
granted.09 

§  2724.     Delivery  of  copies  before  argument. 

At  the  beginning  of  the  argument  of  any  appeal,  the  party 
whose  duty  it  is  to  furnish  the  papers  shall  deliver  to  the  clerk 
thirteen  copies  thereof,  and  each  party  shall  deliver  to  the  clerk 
thirteen  copies  of  his  briefs  and  points.  The  appellate  division 
in  any  department  may  require  further  copies  of  the  papers 
and  briefs  to  be  delivered  in  their  discretion.70 

«s  Rule  41  of  General  Rules  of  Practice. 

";  Wetter  v.  Erichs,  21  App.  Div.  475,  47  N.  Y.  Supp.  688  (mem). 
<;7-c!)  Rule  41  of  General  Rules  of  Practice. 

"o  Rule  43  of  General  Rules  of  Practice.  In  the  first  department  six- 
teen copies  of  the  papers  on  which  the  appeal  is  to  be  heard,  with  an* 


§  2727 


PAPEnS  ON  APPEAL.  3805 


Art.  II.     Appeal  to  Appellate  Division. 


§  2725.     Separate  records. 

Although  separate  actions  involving  the  same  questions  are 
tried  together,  separate  records  should  be  prepared  for  the  pur- 
pose of  appeal.71  So  separate  records  should  be  made  on  an 
appeal  from  separate  orders.72 

§  2726.     Conclusiveness. 

Appellant  is  bound  by  the  recitals  in  the  record  where  he 
has  made  no  application  for  an  amended  return.73 

§  2727.     Defects  in  record. 

If  the  record  is  incomplete  or  defective  in  any  way,  the 
proper  practice  is  to  move  in  the  lower  court,  at  the  earliest  op- 
portunity, to  amend  such  record.  If  such  a  motion  is  not  made, 
the  defect  may  necessitate  a  dismissal  of  the  appeal,  though 
where,  in  case  an  appeal  from  a  judgment  in  favor  of  defend- 
ant be  dismissed,  great  injury  would  probably  result  to  ap- 
pellant, the  appeal  will  not  be  dismissed  on  the  ground  that 
certain  of  the  statements  in  the  record,  concerning  the  trial, 
were  indefinite  and  uncertain.71  A  reargument  has  been  or- 
dered to  give  time  to  amend  the  record  so  as  to  enable  the  ap- 
pellate court  to  consider  the  exceptions  taken.75 

affidavit  showing  the  service  of  three  printed  copies  on  the  attorney 
for  the  respondent,  must  be  filed  with  the  clerk  at  least  eight  days  be- 
fore the  term,  together  with  the  notice  of  argument  with  admission  of 
proof  of  service.  If  not  so  filed,  the  appeal  may  be  dismissed.  In  fourth 
department,  sixteen  copies  must  be  filed  within  fifteen  days  after  the 
service  of  the  printed  papers. 

71  O'Gorman  v.  New  York  &  Q.  C.  R.  Co.,  96  App.  Div.  594,  89  N.  Y. 
Supp.  589;  Tuffey  v.  Brooklyn  Union  Gas  Co.,  102  App.  Div.  416,  92  N. 
Y.  Supp.  489. 

72  Matter  of  Swezey,   64  How.  Pr.  331. 

73  Manning  v.  Ferrier,  27  Misc.  522,  58  N.  Y.  Supp.  332;  Kutner  v. 
Fargo,  34  App.  Div.  317,  54  N.  Y.  Supp.  332. 

74  Midler  v.  Lese,  45  Misc.  637,  91  N.  Y.  Supp.  148. 

75  Chevra  Bnei  Israel  Aushe  Yanova  und  Motal  v.  Chevra  Bikur  Chol- 
im  Aushe  Rodof  Sholem,  23  Misc.  367,  51  N.  Y.  Supp.  236. 


3S0(»  PAPERS  ON  APPEAL.  §  2729 

Art.  III.     Appeal  to  Supreme  Court  From  Inferior  Court. 

The  power  of  the  lower  court  to  amend  the  record  after  an 
appeal  has  been  taken  has  already  been  considered.76 


ART.  III.     APPEAL  TO  SUPREME  COURT  FROM  INFERIOR  COURT. 

§  2728.     Return. 

No  particular  rules  not  already  referred  to  can  be  laid  down 
as  to  the  papers  on  an  appeal  to  the  supreme  court  from  an  in- 
ferior court,  except  on  appeals  from  the  city  court  of  New 
York  city.  The  return  consists  of  the  same  papers  necessary 
to  be  transmitted  on  an  appeal  from  the  appellate  division  to 
the  court  of  appeals.77  The  Code  provisions  relating  to  the 
hearing  of  an  appeal  from  the  trial  or  special  term  to  the  ap- 
pellate division  apply  except  in  so  far  as  changed  by  section 
1345  of  the  Code.78 

Certified  copies  of  papers.     Section  1315  of  the  Code 

requiring  certain  of  the  appeal  papers  to  be  "certified"  copies, 
as  read  in  connection  with  section  3301  of  the  Code  permitting 
a  stipulation  of  the  parties  to  take  the  place,  applies  to  ap- 
peals to  the  supreme  court  from  an  inferior  court.  What  has 
been  said  in  regard  thereto  in  the  article  on  appeals  to  the 
court  of  appeals  79  applies  equally  well  to  appeals  to  the  su- 
preme court  from  an  inferior  court. 

§  2729.    Appeal  from  city  court  of  New  York  city. 

"In  appeals  from  the  city  court,  in  case  the  appellant  does 
not  cause  the  return  to  be  filed  with  the  clerk  of  the  said  Ap- 
pellate Term  of  the  court  and  print  and  serve  three  copies 
thereof  upon  the  attorney  for  the  respondent,  printed  as  re- 
quired by  the  general  rules  of  practice,  within  ten  days  after 
service  of  the  notice  of  appeal,  the  respondent  may  move,  upon 
five  days'  notice,  on  the  first  day  of  any  term  of  such  court,  to 

ts  See  ante,  §  2701. 

n  Code  Civ.  Proc.  §  1315.     See  ante,  §§  2705,  2706. 

78  Code  Civ.  Proc.  §  1344. 

™  See  ante,  §  2707. 


§  2729  PAPERS  ON  APPEAL.  3807 

Art.  III.     Appeal  to  Supreme  Court  From  Inferior  Court. 

dismiss  the  appeal,  and  the  appeal  shall  be  dismissed  unless  the 
time  of  the  appellant  to  cause  such  return  to  be  filed  and  copies 
thereof  printed  and  served  be  extended  by  such  appellate  term 
for  good  cause  shown. ' ' 80 

An  extension  of  the  time  to  file  a  return  will  not  be  granted 
because  of  the  engagement  of  counsel  where  the  appeal  is  taken 
on  technical  grounds  not  affecting  the  merits.81 

so  Rule  3  appellate  term  rules. 

si  Goelet  v.  Lawlor,  19  Misc.  541,  43  N.  Y.  Supp.  1071. 


CHAPTER  XI. 

BRIEFS  OR  POINTS. 

ART.    I.     GENERAL    RULES. 

Definition  of  "points,"  §  2730. 
Proof  of  service,  §  2731. 
Waiver  of  objections,  §  2732. 

ART.    II.      IN    COURT    OF    APPEALS. 

Filing  and  service,  §  2733. 

Reply  and  supplemental  points. 

Exceptions  to  rule. 

Effect  of  violation  of  rule. 

Contents,  §  2734. 

Statement  of  facts. 

Citation  of  authorities. 

ART.   III.      IN   APPELLATE  DIVISION. 

Rule  43,  §  2735. 

Filing  and  service,   §  2736. 

In  first  department. 

In  second  department. 

In  third  department. 

In  fourth  department. 

On  non-enumerated  motions,   §  2737. 
Supplemental  brief,  §  2738. 
Indorsements,   §   2739. 
Contents,  §  2740. 

Statement  of  facts. 

Citation  of  statutes. 

Citation  of  cases. 

Effect  of  failure  to  discuss  exceptions. 

ART.    I.      GENERAL    RULES. 

§  2730.     Definition  of  "points." 

The  rules  of  practice  refer  to  "points"  instead  of  to  briefs. 
The  term  "points,"  as  used  in  the  rules,  means  the  entire 


§  2733 


BRIEFS  OR  POINTS.  3809 


Art.  II.     In  Court  of  Appeals. 


printed  argument  and  not  merely  the  head  of  the  argument 
with  the  authorities  cited. 

§  2731.     Proof  of  service. 

Service  on  the  opposing  attorney  should  be  proved  by  filing 
with  the  clerk  an  affidavit  or  admission  of  service,  with  the 
copies  of  the  points  required  to  be  filed  with  the  clerk. 

§  2732.    Waiver  of  objections. 

The  service  of  the  required  number  of  copies,  and  the  time 
for  serving,  as  between  the  parties,  may  be  regulated  by  stipu- 
lation, though  it  would  seem  that  the  rule  is  otherwise  as  to 
filing  copies  with  the  clerk. 

ART.   II.     IN  COURT  OF  APPEALS. 

§  2733.     Filing  and  service. 

At  least  twenty  days  before  a  cause  is  placed  on  the  day  cal- 
endar, the  appellant  shall  file  with  the  clerk  sixteen  copies, 
and  serve  on  the  attorney  or  counsel  for  the  respondent  three 
printed  copies,  of  the  points  to  be  relied  on  by  him  with  a  refer- 
ence to  the  authorities  to  be  cited.  Within  ten  days  after  such 
service  the  respondent  shall  file  with  the  clerk  sixteen  printed 
copies,  and  serve  on  the  attorney  or  counsel  for  the  appellant, 
three  printed  copies,  of  the  points  to  be  relied  on  by  him,  with 
a  reference  to  the  authorities  to  be  cited.1 

Reply  and  supplemental  points.  If  the  appellant  de- 
sires to  present  points  on  authorities  in  reply,  he  shall  file  with, 
the  clerk  sixteen  printed  copies  thereof  and  serve  three  printed 
copies  on  the  attorney  or  counsel  for  the  respondent  within 
five  days  after  receipt  of  the  respondent's  points;  and  no 
supplemental  points  will  be  allowed  from  either  side  unless 
specially  requested  by  the  court.2 

Exceptions  to  rule.     This  rule,  so  far  as  it  relates  to  the 

filing  and  service  of  the  printed  points,  does  not  apply  to  "ap- 

!-4  Rule  7  of  the  court  of  appeals. 
N.  Y.  Prac—  239. 


3810  BRIEFS  OR  POINTS.  §  2734 


Art.   II.     In  Court  of  Appeals. 


peals  from  orders  entitled  to  be  heard  as  motions,"  and  in 
all  cases  to  be  argued  during  the  first  two  weeks  of  any  term 
commencing  next  after  making  of  a  new  calendar,  the  parties 
shall  file  the  printed  papers,  and  file  and  serve  or  exchange 
the  printed  points,  at  least  two  days  before  the  causes  shall  be 
placed  upon  the  day  calendar.3 

Effect  of  violation  of  rule.     No  points  will  be  received 

by  the  court  on  argument  or  submission  unless  filed  and  served 
as  provided  by  the  rule,4  except,  it  would  seem,  that  service  on 
the  opposing  attorney  may  be  regulated  by  stipulation  and 
that  objections  may  be  waived. 

§  2734.     Contents. 

The  brief  should  specifically  call  the  attention  of  the  court 
to  the  exceptions  as  to  which  the  authorities  cited  relate.5 

Statement  of  facts.     "In  all  causes  each  party  shall 

briefly  state  upon  his  printed  points,  in  a  separate  form,  the 
leading  facts  which  he  deems  established,  with  a  reference  to 
the  folios  where  the  evidence  of  such  facts  may  be  found.  And 
the  court  will  not  hear  an  extended  discussion  upon  any  mere 
question  of  fact. ' ' G 

This  rule  necessarily  excludes  from  every  brief,  prepared 
for  use  in  the  court  of  appeals,  lengthy  quotations  from  the 
evidence,  particularly  in  a  case  of  unanimous  affirmance  where 
the  Constitution  prohibits  a  review  of  the  evidence.  The  rule 
calls  for  the  facts  and  not  the  evidence.  Except  where  there  is 
a  reversal  by  the  appellate  division,  or  an  affirmance  by  a  di- 
vided court  and  it  is  claimed  that  there  is  no  evidence  what- 
ever to  support  a  fact  which  is  necessary  to  sustain  the  judg- 
ment, only  those  facts  should  be  mentioned  which  are  either 
specifically  found  or  are  presumed  to  have  been  found,  accord- 
ing to  the  rules  governing  appeals  to  the  court  of  appeals. 
Even  when  the  affirmance  is  not  unanimous,  counsel  should 
not  state,  as  established  facts,  all  allegations  they  may  think 
are  supported  by  the  weight  of  the  evidence.7 

5  Nelson  v.  Village  of  Canisteo,  100  N.  Y.  89. 

c  Rule  8  of  the  court  of  appeals. 

-,  s  Stevens  v.  O'Neill,  169  N.  Y.  375. 


I  2736  BRIEFS  OR  POINTS.  3811 

Art.  III.     In  Appellate  Division. 

Citation  of  authorities.     Extended  quotations  from  au- 
thorities are  condemned.8 


ART.   III.      IN    APPELLATE    DIVISION. 

§  2735.     Rule  43. 

Rule  43  of  the  General  Rules  of  Practice  provides  as  to  the 
paper,  size  of  page,  type,  folioing,  etc.,  of  briefs  furnished  in 
the  appellate  division. 

§  2736.    Filing  and  service. 

Special  rules  in  the  various  departments  of  the  appellate 
division  fix  the  practice  in  relation  to  the  filing  and  service  of 
briefs. 

In  first  department.     In  the  first  department,   (rules  4 

and  5)  both  on  enumerated  and  non-enumerated  appeals,  the 
appellant  must  file  with  the  clerk  of  the  appellate  division  at 
least  eight  days  before  the  day  on  which  such  appeal  shall  have 
been  noticed,  sixteen  copies  of  the  brief  with  an  affidavit  show- 
ing the  service  of  three  printed  copies  thereof  on  the  attorney 
for  the  respondent. 

In  second  department.     In  the  second  department,  on 

the  enumerated  calendar,  appellant  must  file  with  the  clerk 
thirteen  copies  and  serve  on  respondent's  attorney  three  copies, 
at  least  ten  days  before  the  cause  is  placed  on  the  day  calen- 
dar. Within  five  days  thereafter  the  respondent  must  file  with 
the  clerk  thirteen  copies  and  serve  three  copies  on  appellant's 
attorney.  If  a  reply  brief  is  prepared  thirteen  copies  must  be 
filed  and  three  served  on  respondent's  attorney,  within  three 
days  thereafter. 

In  third  department.     In  the  third   department    (rule 

15)  thirteen  copies  of  the  points  must  be  filed  with  the  clerk  be- 
fore the  commencement  of  the  argument.  Three  copies  of  ap- 
pellant's brief  must  be  served  on  respondent's  attorney  at  least 
twenty  days  before  a  term  of  the  appellate  division  at  which  a 
cause  may  be  noticed  for  argument,  and  three  copies  of  re- 
spondent's brief  must  be  served  on  appellant's  attorney  at  least 


3812  BRIEFS  OR  POINTS.  §  2737 


Art.  III.     In  Appellate  Division. 


eight  (lavs  before  said  term.  The  service  may  be  by  mail  but  it 
does  not  extend  the  time  within  which  the  answering-  brief  may 
be  served.  A  violation  of  this  rule  in  that  appellant  fails  to 
serve  his  brief  until  fifteen  days  before  the  term,  though  the 
rule  lixes  no  penalty  for  disobedience  thereof,  may  be  punished 
by  putting  the  cause  over  the  term.9 

In  fourth  department.     Within  fifteen  days  after  the 

service  of  the  printed  papers  required  to  be  served  by  General 
41  in  enumerated  motions,  the  party  whose  duty  it  is  to 
furnish  those  papers  shall  file  with  the  clerk  sixteen  printed 
copies  of  the  papers  and  sixteen  printed  copies  of  his  brief  and 
the  points  upon  which  he  intends  to  rely  upon  the  argument, 
with  a  reference  to  all  the  authorities,  which  he  intends  to  cite 
to  the  court ;  and  shall,  at  the  same  time,  serve  on  the  attorney 
or  counsel  for  the  other  party  three  copies  thereof.  Within 
seven  days  thereafter  the  other  party  shall  file  with  the  clerk 
sixteen  printed  copies  of  his  brief  and  points,  with  a  reference 
to  all  his  authorities,  and  serve  on  the  attorney  or  counsel  for 
the  moving  party  three  printed  copies  thereof.  If  either  party 
shall  fail  to  serve  and  file  his  brief  and  points,  as  herein  re- 
quired, he  shall  not  be  heard  upon  the  argument,  and  judg- 
ment may  be  entered  against  him  as  upon  default,  on  applica- 
tion to  the  court  on  any  motion  day  upon  three  days'  notice. 

If  the  moving  party  desires  to  serve  an  answering  brief  he 
shall  file  with  the  clerk  sixteen  printed  copies  thereof,  and 
serve  upon  his  opponent  three  printed  copies,  within  five  days 
after  the  receipt  of  his  opponent's  brief.  He  shall  not  include, 
in  his  answering  brief,  any  matter  which  is  not  in  the  nature 
of  an  answer  to  the  brief  to  which  it  purports  to  reply.10 

§  2737.     On  non-enumerated  motions. 

Briefs  must  be  delivered  to  the  clerk  and  to  the  attorney  for 
the  adverse  party  at  or  before  the  commencement  of  the  argu- 
ment. 

0  Matter  of  Haase,  101  App.  Div.  336,  91  N.  Y.  Supp.  373. 
!o  Rule  9  of  the  Fourth  Department  which  expressly  states  that  it 
does  not  apply  to  appeals  from  nonenumerated  motions. 


g  0  74:0  BRIEFS  OR  POINTS.  3813 


Art.  III.     In  Appellate  Division. 


§  2738.     Supplemental  brief. 

In  the  first  department  (rule  9)  no  brief  or  memorandum 
of  authorities  will  be  received  by  the  court  after  the  argument 
of  a  motion  or  an  appeal,  unless  permission  be  given  by  the 
court  for  its  submission,  after  notice  to  the  opposing  counsel 
of  the  application  for  such  permission.  In  the  fourth  depart- 
ment (rule  9),  no  supplemental  briefs  are  allowed  unless  re- 
quested by  the  court. 

§  2739.    Indorsements. 

In  the  second  department,  by  rule  11,  the  counsel  who  argues 
the  cause  orally  is  required  to  indorse  his  name  on  the  upper 
right  hand  corner  of  the  first  page  of  the  brief.  In  the  third 
(rule  10)  and  fourth  (rule  11)  departments,  the  counsel  argu- 
ing the  case  must  indorse  on  his  brief  delivered  to  the  justices 
their  names  and  place  of  residence. 

§  2740.     Contents. 

The  points  should  be  clear  and  concise.  The  facts  should 
be  stated  briefly,  eliminating  all  immaterial  ones.  The  points 
should  be  numbered  consecutively.  Lengthy  quotations  from 
authorities,  especially  from  New  York  cases,  should  not  be 
inserted. 

Statement  of  facts.  In  the  third  and  fourth  depart- 
ments, the  appellant,  in  addition  to  the  statement  required  by 
rule  41  of  the  General  Rules  of  Practice,  shall  prefix  to  his 
points  a  brief  statement,  showing  in  what  court  or  before  what 
officer  or  tribunal  the  action  or  proceeding  was  instituted,  the 
relief  sought,  the  defense  or  ground  of  opposition  thereto,  the 
result  in  the  court  or  before  the  officer  or  tribunal  in  which  the 
action  or  proceeding  was  commenced,  and  how  the  cause  was 
brought  into  the  appellate  division.  If  am'  opinion  written  in 
the  case  has  been  previously  reported,  he  shall  also  state  where 
it  was  so  reported.  If  any  opinion  has  been  written  which  has 
not  been  reported,  the  party  whose  duty  it  is  to  furnish  the 


3S14  BRIEFS  OR  POINTS.  §  2740 

Art.  III.     In  Appellate  Division. — Contents. 

papers  shall  submit  a  printed  copy  of  such  opinion  to  the  court 
either  in  the  record  or  with  his  brief.11 

Citation  of  statutes.     In  the  second  department   (rule 

12),  when  a  statute  is  cited,  so  much  thereof  as  may  be  deemed 
necessary  to  the  decision  of  the  case  shall  be  printed  at  length 
in  the  brief. 

Citation  of  cases.     All  cases  cited  in  the  briefs  from  the 

courts  of  this  state  shall  be  cited  from  the  reports  of  the  official 
reporters,  if  such  cases  shall  have  been  reported  in  full  in  thp 
official  reports.12 

Effect  of  failure  to  discuss  exceptions.     The  fact  that 

exceptions  are  not  discussed  in  the  brief  of  appellant  does  not 
prevent  the  court  from  basing  a  reversal  thereon.13 

11  Rule  9  of  the  Third  Department;  Rule  10  of  the  Fourth  Depart- 
ment. 

i2  Rule  43  of  General  Rules  of  Practice. 

isPurcell  v.  Hoffman  House,  97  App.  Div.  307,  89  N.  Y.  Supp.  975. 
However,  points  not  urged  will  generally  not  be  considered  (Landers 
v.  Staten  Island  R.  Co.,  13  Abb.  Pr.  [N.  S.]  338,  348)  though  it  has  been 
held  that  they  should  be  where  raised  by  exception.  Schoonmaker  v. 
Wolford,  20  Hun,  166. 


CHAPTER  XII. 

CALENDARS  AND  PROCEEDINGS  PRELIMINARY  TO 

HEARING. 

ART.   I.     IN  COURT  OF  APPEALS. 

New  calendar,  §  2741. 
Notice  of  argument,  §  2742. 
Order  of  causes,  §  2743. 

Preferred  causes. 

Exchange  of  causes  on  the  calendar. 

After  cause  is  called  and  passed. 

On  second  and  subsequent  appeals. 

Day  calendar,  §  2744. 

Causes  submitted. 

Causes  reserved. 

ART.   II.      IN    APPELLATE    DIVISION. 

Rules  which  govern,  §  2745. 

Filing  of  papers  as  condition,  §  2746. 

Notes  of  issue,  §  2747. 

Order  of  causes,  §  2748. 

Preferred  causes. 

Passed  causes. 

Day  calendar,  §  2749. 
Exchange  of  causes,  §  2750. 
Reservation  of  causes,  §  2751. 

ART.    I.      IN    COURT   OF    APPEALS. 

§  2741.     New  calendar. 

A  new  calendar  is  not  made  at  any  fixed  time  but  on  or 
about  the  last  day  of  any  session  at  which  it  is  apparent  that 
not  enough  causes  remain  undisposed  of  to  occupy  the  court 
for  another  session  a  new  calendar  is  ordered  to  be  made  for 
the  ensuing  session  and  the  time  is  fixed  on  or  before  which 
the  returns  and  notices  of  argument  for  the  new  calendar  must 


3816  CALENDARS,  ETC.  §2742 

Art.  I.     In  Court  of  Appeals. 

be  filed,  and  the  date  of  the  beginning  of  the  session  at  which 
the  new  calendar  will  be  taken  up  is  set.1 

When  a  new  calendar  is  ordered  by  the  court,  the  clerk  shall 
place  thereon  all  causes  in  which  notices  of  argument,  with 
proof  or  admission  of  service,  have  been  filed  in  his  office ;  and, 
also,  if  ordered  by  the  court,  all  other  causes  in  which  the  re- 
turns have  been  filed  in  his  office,  and  the  causes  so  put  on  the 
calendar  by  the  direction  of  the  court  will  be  heard  in  their- 
order  as  if  regularly  noticed.2 

§  2742.     Notice  of  argument. 

After  the  return  is  filed,  but  not  before,  either  party  may 
serve  a  notice  of  argument.  The  order  for  making  a  new  cal- 
endar usually  directs  the  time  when  the  notice  is  to  be  served 
on  the  clerk. 

To  entitle  an  appeal  "from  an  order"  to  be  placed  on  the 
order  calendar,  a  notice  of  argument  for  the  first  Monday  of 
a  session  must  be  served  at  least  eight  days  before  the  day 
named  therein  for  the  hearing,  unless  service  is  waived  or 
short  notice  accepted,  and  must  be  filed  with  the  clerk  before 
two  o'clock  in  the  afternoon  of  the  Friday  next  preceding  the 
Monday  named  therein.  The  notice  should  so  describe  the  ap- 
peal as  to  show  that  it  is  within  the  rule.3 

If  a  preference  on  the  calendar  is  sought,  the  claim  therefor 
should  be  inserted  in  the  notice  of  argument.4 

Notes  of  issue  are  not  used  in  the  court  of  appeals. 

Form  of  notice  of  argument. 

[Title  of  cause.] 
Please  take  notice  that  the  appeal  taken  in  the  above-entitled  action 

by  ,  from  the  judgment  (or  "order")   of  the  appellate  division, 

department,  will  be  brought  on  for  argument  at  the  next  term  of 

the  court  of  appeals,  to  be  held  at  the  capitol  in  the  city  of  Albany, 
od  the day  of ,  190 — ,  at  the  opening  of  the  court  on  that 

i  Smith,  Ct.  of  App.  Pr.  118. 

2  Rule  19  of  the  court  of  appeals. 

3  Smith,  Ct.  of  App.  Pr.  72b. 
*  See  post,  §  2743. 


I  9743  CALENDARS,  ETC.  3817 


Art.  I.     In  Court  of  Appeals. 


day,  or  as  soon  thereafter  as  counsel  can  be  heard,  and  will  be  moved 

as  a  preferred  cause,  on  the  ground  that  . 

[Date.]         [Signature  and  office  address  of  appellant's  attorney.] 
[Address  to  clerk  of  court  of  appeals  and  to  attorneys  for  respond- 
ents.] 

§  2743.     Order  cf  causes. 

In  the  court  of  appeals  cases  are  heard  in  the  following 
order:  (1)  ex  parte  motions;  (2)  motions  on  notice;  (3)  ap- 
peals from  orders  and  interlocutory  judgments;  (4)  appeals 
on  the  general  calendar. 

"Motions,  appeals  from  final  orders  in  special  proceedings, 
appeals  from  interlocutory  judgments  overruling  or  sustaining 
demurrers,5  and  appeals  from  orders  in  actions  and  special  pro- 
ceedings certified  to  the  court  of  appeals  by  the  appellate  di- 
visions, except  orders  granting  a  new  trial,  may  be  noticed 
for  and  will  be  heard  on  the  first  Monday  of  each  session  of  the 
court,  before  taking  up  the  calendar.  Original  motions  may 
be  submitted  on  any  Monday. " c  No  calendar  of  motions  is 
made  up,  though  the  calendar  of  appeals  from  orders  and  inter- 
locutory judgments  is  sometimes  referred  to  as  the  "motion 
calendar."  Such  calendar  contains  appeals  from  orders  ac- 
cording to  the  priority  of  filing  returns,  given  consecutive  num- 
bers, following  the  last  number  on  the  general  calendar.  If 
the  appeal  is  not  reached  on  the  motion  day  for  which  noticed 
and  is  not  put  over  by  stipulation,  it  retains  its  place  and 
priority  on  the  calendar  for  the  first  Monday  of  the  next  ses- 
sion, over  all  other  causes,  including  those  which  may  have 
been  put  over  by  stipulation  on  the  former  motion  day.7 

The  causes  are  put  on  the  general  calendar  in  the  order  of 
the  date  of  filing  the  returns,  except  where  the  cause  is  entitled 
to  a  preference.  Preferred  causes  are  arranged  in  the  several 
classes  according  to  the  dates  of  the  filing  of  the  returns.8 

b  An  appeal  from  any  interlocutory  judgment  may  be  put  on  the  mo- 
tion calendar.     Slater  v.  Slater,  174  N.  Y.  264. 

«  Rule  11  of  the  court  of  appeals.  The  motions  first  specified  include 
motions  to  dismiss  appeals. 

"  Smith,  Ct.  of  App.  Pr.  72b,  73. 

s  Smith,  Ct.  of  App.  Pr.  119. 


3818  CALENDARS,  ETC.  §2743 

Art.  1.     In  Court  of  Appeals. — Order  of  Causes. 

Preferred  causes.     No  causes  are  entitled  to  any  pref- 


erence on  the  calendar  except  such  as  is  given  by  law  or  the 
special  order  of  the  court.9  There  are  twelve  groups  of  cases 
entitled  to  preference  in  the  order  named  in  the  Code.  The 
right  to  a  preference  on  the  calendar,  as  provided  for  by  the 
Code,  has  been  treated  of  in  a  preceding  volume.10  These  rules 
apply  to  the  calendar  of  the  court  of  appeals.  Cases  preferred 
by  the  General  Rules  of  Practice  of  the  supreme  court  are  not 
entitled  to  preference  in  the  court  of  appeals.11 

Any  party  claiming  a  preference  must  so  state  in  his  notice 
of  argument  to  the  opposite  party  and  the  clerk ;  and  he  must 
also  state  the  ground  of  such  preference  so  as  to  show  to  which 
of  the  preferred  classes  the  cause  belongs.12  The  court  will 
not  add  a  case  to  the  existing  calendar,  even  though  entitled 
to  preference,  unless  some  question  of  public  importance  is 
involved,  or  the  circumstances  are  extraordinary.13 

An  order  is  necessary,  in  some  cases,  to  obtain  a  preference.14 
The  motion  for  a  preference,  where  necessary,  may  be  made, 
on  notice,  before  any  judge  of  the  court  of  appeals,  at  his 
residence  or  office  or  elsewhere.15 

A  preferred  cause,  where  passed,  loses  it  preference.16 

Exchange  of  causes  on  the  calendar.     Causes  upon  the 

calendar  may  be  exchanged  one  for  another,  of  course,  on  filing 
with  the  clerk  a  note  of  the  proposed  exchange,  with  the  num- 
bers of  the  causes,  signed  by  the  respective  attorneys  or  coun- 
sel.    Upon  all  the  subsequent  calendars  each  of  said  causes  will 

o  Rule  14  of  the  court  of  appeals. 

io  Volume  2,  pp.  1674-1690.  The  Code  provision  giving  a  preference 
to  appeals  where  a  party  has  died  pendente  lite  applies  only  where  the 
deceased  was  a  sole  plaintiff  or  a  sole  defendant.  Cotton  v.  New  York 
El.  R.  Co..  151  N.  Y.  266. 

ii  Nichols  v.  Scranton  Steel  Co.,  135  N.  Y.  634,  which  holds,  how- 
ever, that  a  preference  may  be  granted,  in  the  discretion  of  the  court, 
though  not  provided  for  by  statute  or  rule  of  the  court  of  appeals. 

12  Rule  14  of  the  court  of  appeals;  Taylor  v.  Wing,  83  N.  Y.  527. 

is  Goldberg  v.  Markowvitz,  179  N.  Y.  596. 

i*  When  order  is  necessary,  see  vol.  2,  p.  1682. 

15  Bank  of  Attica  v.  Nat.  Bank,  91  N.  Y.  239. 

10  Rule  14  of  the  court  of  appeals. 


§2744 


CALENDARS,  ETC.  3819 


Art.  I.     In  Court  of  Appeals. — Order  of  Causes. 


take  the  place  due  to  the  date  of  the  filing-  of  the  return  in 
the  other.17 

In  like  manner,  a  cause  not  upon  the  calendar  in  which  an 
appeal  to  the  court  of  appeals  has  been  perfected  and  the  re- 
turn duly  filed  with  the  clerk,  may  be  exchanged,  of  course,  for 
another  cause  upon  the  calendar,  on  filing  with  the  clerk  a 
note  of  the  proposed  exchange,  with  the  number  of  the  cause 
on  the  calendar,  and  the  date  of  filing  return  in  the  cause  not 
upon  the  calendar,  signed  by  the  respective  attorneys  or  coun- 
sel, and  also  a  stipulation  of  the  attorneys  or  counsel  in  the 
cause  not  on  the  calendar  setting  down  the  same  for  argument 
in  place  of  the  calendar  cause  when  reached,  with  the  same 
effect  as  if  duly  noticed.  Upon  all  subsequent  calendars,  each 
of  said  causes  will  take  the  place  due  to  the  date  of  the  filing 
the  return  in  the  other.18 

After  cause  is  called  and  passed.     Any  cause  which  is 

regularly  called  and  passed,  without  postponement  by  the 
court  for  good  cause  shown  at  the  time  of  the  call,  will  be 
placed  on  all  subsequent  calendars  as  if  the  return  had  been 
filed  on  the  day  when  it  was  so  passed.10  If  a  preferred  cause 
is  passed,  it  loses  its  preference. 

On  second  and  subsequent  appeals.     On  a  second  and 

each  subsequent  appeal,  including  a  case  where  a  former  ap- 
peal has  been  dismissed  for  a  defect  or  irregularity,  the  time 
of  filing  the  return,  on  the  first  appeal,  determines  the  place 
of  the  cause  on  the  calendar.20 

§  2744.     Day  calendar. 

The  first  eight  causes  on  the  calendar  constitute  the  first 
day  calendar.     Eight  causes  only  will  be  called  on  any  day, 

"  Rule  12  of  the  court  of  appeals.  The  exchange  of  causes  provided 
for  by  this  rule  applies  only  to  cases  not  yet  placed  on  the  day  calen- 
dar. After  being  put  on  the  day  calendar,  the  place  can  be  changed 
only  by  leave  of  court.     Smith,  Ct.  of  App.  Pr.  75. 

is  Rule  12  of  the  court  of  appeals. 

19  Rule  12  of  the  court  of  appeals.  When  hearing  of  appeal  will  be 
postponed,  see  post,  §  2754. 

20  Code  Civ.  Proc.  §  195. 


3320  CALENDARS,  ETC.  §2744 

Art.   I.     In  Court  of  Appeals. — Day  Calendar. 

but  after  such  call  causes  ready  on  both  sides  will  be  heard  in 
I  heir  order.23 

Causes  submitted.     Causes  will  not  be  received  on  sub- 

missii.n  until  reached  in  the  regular  call  of  the  calendar.22 
Causes,  when  reached  on  the  day  calendar,  may  be  submitted 
without  oral  argument,  by  both  parties  or  may  be  argued  by 
one  party  and  submitted  by  the  other.  If  it  is  intended  to  sub- 
mit, the  clerk  should  be  informed  of  the  fact  and  the  party 
who  intends  to  submit  must  be  sure  that  his  points  have  been 
properly  served  and  filed.23 

Causes  reserved.     No  reservation  will  be  made  of  any 

of  the  first  eight  causes,  unless  on  account  of  sickness,  or  an 
engagement  elsewhere  in  the  actual  trial  or  argument  of  an- 
other cause  commenced  before  the  term  of  the  court  of  ap- 
peals, or  other  inevitable  necessity,  to  be  shown  by  affidavit. 
Other  causes  may  be  reserved  upon  reasonable  cause  shown,  or 
by  stipulation  of  parties  filed  with  the  clerk,  but  no  cause  shall 
be  so  reserved  by  stipulation  after  the  same  has  been  placed 
upon  the  day  calendar.24 

Causes  reserved  for  a  day  certain  by  stipulation,  when  in  or- 
der to  be  called,  have  priority  among  each  other  according  to 
the  time  of  filing  the  stipulations  with  the  clerk,  and  shall  fol- 
low next  in  order  the  undisposed  of  causes  of  the  calendar  for 
the  day  previous.  Default  may  be  taken  in  them,  and  they 
will,  if  passed,  go  down  upon  future  calendars  as  if  passed  in 
the  regular  call.25 

Xo  reserved  cause,  whether  reserved  generally  or  for  a  par- 
ticular day,  will  be  called  before  its  number  is  reached  on  the 
regular  call  of  the  calendar.26 

By  stipulating  to  set  a  cause  down  for  a  day  certain,  parties 
insure  that  the  cause  will  not  be  put  on  the  day  calendar  be- 
fore the  day  named.  After  the  day  calendar  is  made  up,  a 
stipulation  of  reservation  thereafter  received  is  of  no  effect  ex- 

2i  Rule  12  of  the  court  of  appeals. 
--  Rule  10  of  the  court  of  appeals. 
23  Smith,  Ct.  of  App.  Pr.  66. 
24-2p'Rule  10  of  the  court  of  appeals. 


-J    £-._  I  ~, 


§271 


CALENDARS,  ETC.  3821 

Art.  II.     In  Appellate  Division. 


eept  that  if  the  cause  is  not  reached  on  that  day  it  may  be  left 
off,  on  making  up  the  next  day's  calendar,  and  go  over  for  the 
day  named  in  the  stipulation.  If  the  court  is  not  in  session  on 
the  day  for  which  the  case  is  stipulated,  it  will  be  put  on  the 
next  day  calendar  thereafter.  When  a  new  general  calendar 
is  made  up,  new  stipulations  must  be  filed.27 

ART.   II.      IN  APPELLATE  DIVISION. 

§  2745.    Rules  which  govern. 

The  General  Rules  of  Practice  have  little  to  say  regarding 
calendar  practice  in  the  appellate  division,  it  being  left  to  each 
department  to  make  its  own  rules.  The  rules  fixed  by  the  dif- 
ferent departments  are  largely  the  same  though  they  differ  to 
some  extent. 

§  2746.     Filing  of  papers  as  condition. 

No  case  shall  be  put  on  the  enumerated  or  non-enumerated 
calendar  until  the  papers  required  by  General  Rule  41  have 
been  filed  with  the  clerk. 

§  2747.     Notes  of  issue. 

Notes  of  issue  for  the  appellate  division  shall  be  filed  eight 
days  before  the  commencement  of  the  court  at  which  the  cause 
may  be  noticed.28 

In  the  second  (rule  7),  third  (rule  1)  and  fourth  (rule  1)  de- 
partments, the  attorney  or  party  intending  to  move  an  appeal 
for  argument  on  the  non-enumerated  calendar,  shall,  at  least 
eight  days  before  the  time  of  the  making  up  of  the  calendar, 
file  with  the  clerk  a  note  of  issue,  specifying  the  date  of  the 
service  of  the  notice  of  appeal,  and  stating  that  the  case  is  to 
be  put  on  the  non-enumerated  calendar.  On  appeals  from 
orders  noticed  for  argument  on  a  motion  day,  the  appellant  or 
moving  party  must,  in  the  first  department,  file  with  the  clerk 

27  Smith,  Ct.  of  App.  Pr.  67. 

23  Rule  39  of  General  Rules  of  Practice. 


3822  CALENDARS,  ETC.  §  2748 

Art.    11.      In   Appellate  Division. — Note  of  Issue. 

of  the  appellate  division  at  least  eight  days  before  the  day 
upon  which  such  appeal  shall  have  been  noticed,  a  note  of  is- 
sue which  shall  state  the  date  of  service  of  the  notice  of  appeal. 

In  the  first  department  (rule  1),  a  note  of  issue  on  a  motion, 
stating  the  nature  of  the  motion  and  the  day  for  which  it  has 
been  noticed  must,  be  filed  with  the  clerk  before  noon  on 
the  Thursday  preceding  the  Friday  for  which  the  motion  is 
noticed.  In  the  second  department  (rule  6),  motions,  other 
than  appeals  from  orders,  will  be  heard  on  the  first  and  third 
..Mondays  of  the  term,  and  notes  of  issue  therefor  must  be  filed 
with  the  clerk  at  least  two  days  before  the  day  for  which  they 
are  noticed. 

The  department  rules  provide  that  a  party  who  desires  to 
have  a  case  heard  as  a  preferred  case  must,  in  his  note  of  issue, 
state  his  claim  for  preference  as  provided  for  in  section  793 
of  the  Code;  or  if  an  order  giving  the  case  a  preference  has 
been  made  under  that  section,  the  note  of  issue  must  be  accom- 
panied with  a  copy  of  such  order.20 

§  2748.     Order  of  causes. 

Appeals  shall  be  placed  on  the  calendar,  according  to  the 
date  of  the  service  of  the  notice  of  appeal ;  and  all  subsecpuent 
enumerated  appeals  in  the  same  cause  shall  be  put  on  the  cal- 
endar as  of  the  date  of  the  first  appeal;  and  other  cases  as  of 
the  time  when  the  question  to  be  reviewed  arose.  Appeals  in 
non-enumerated  motions  shall  also  be  placed  on  a  separate  cal- 
endar. Cases  entitled  to  preference  shall  be  placed  separately 
on  the  calendar.30 

In  the  first  department,  the  clerk  makes  up  a  calendar  of 
enumerated  cases  for  each  term  of  the  court,  which  consists 
of  the  enumerated  cases  upon  the  calendar  of  the  preceding 
term  undisposed  of,  and  which  shall  not  have  been  passed 
twice  upon  any  of  the  previous  calendars  of  the  court,  to 
which  is  added  new  cases  noticed  for  argument. 

20  The  last  clause  is  applicable  to  all  the  departments  other  than  the 
first  in  which  no  provision  is  made  therefor, 
so  Rule  39  of  General  Rules  of  Practice. 


2748  CALENDARS,  ETC.  3823 


Art.  II.     In  Appellate  Division. — Order  of  Causes. 


In  that  department  a  motion  day  calendar  is  made  up,  con- 
sisting of  all  motions  noticed  to  be  heard  on  that  day.  No 
motion  not  on  snch  calendar  can  be  heard.  All  ex  parte  appli- 
cations must  be  made  on  motion  days  except  by  special  permis- 
sion of  the  court.  Appeals  from  orders  are  heard  only  on  mo- 
tion clays  (Fridays),  the  calendar  of  which  is  taken  up  imme- 
diately after  the  disposition  of  the  motion  calendar. 

In  the  second  department,  appeals  from  orders,  heard  as 
non-enumerated  motions,  are  placed  upon  a  separate  calendar 
and  called  the  first  day  of  the  term. 

In  the  third  and  fourth  departments,  if  all  non-enumerated 
motions  and  appeals  from  orders  which  are  ready  for  hearing 
on  the  first  day  of  the  term  are  not  heard  upon  that  day,  the 
hearing  of  them  is  continued  from  day  to  day  until  they  are 
all  disposed  of,  before  the  general  calendar  is  taken  up,  unless 
otherwise  ordered  by  the  court. 

Preferred  causes.     The  clerk  must  place  the  preferred 

causes  at  the  head  of  the  general  calendar,  indicating  that  they 
are  preferred,  and  the  class  to.  which  they  belong. 

Passed  causes.     In  the  second  department,  an  appeal 

passed  during  any  term  may  be  brought  on  for  argument  on 
any  day  during  a  subsequent  term  upon  stipulation,  or  upon 
four  days'  notice  to  the  opposing  party,  and  on  filing  with  the 
clerk  such  stipulation  or  proof  of  service  of  such  notice,  the 
clerk  will  cause  the  appeal  to  be  placed  on  the  day  calendar  of 
the  day  named  in  such  notice  or  stipulation. 

In  the  third  department  (rule  13),  if  a  cause  is  passed  with- 
out being  reserved,  or  put  over  by  consent  of  the  court,  it  shall 
be  entered  on  all  subsequent  calendars  as  of  the  date  when 
passed,  and  the  party  placing  it  on  the  calendar  for  a  subse- 
quent term  must  state  in  his  note  of  issue  the  date  when  it  was 
passed.  If  he  omits  to  do  so,  whereby  the  cause  retains  its 
priority  on  the  calendar,  the  court,  on  the  application  of  the 
adverse  party,  or  on  its  own  motion,  may  strike  the  cause  from 
the  calendar. 

In  the  fourth  department,  if  a  case  shall  have  been  passed  it 
shall  go  upon  the  calendar  as  of  the  time  when  it  was  passed, 


3824  CALENDARS,  ETC.  §2750 


Art.  II.     In  Appellate  Division. 


and    the    Fact    that   it  was   passed   shall  be   stated  upon  the 
calendar. 

§  2749.     Day  calendar. 

The  day  calendar  in  the  fourth  department  (rule  5),  is  pre- 
pared at  3  p.  m.  of  the  preceding  day  and  consists  of  ten  cases, 
or  such  other  number  as  the  court  directs,  including  those  un- 
disposed of  on  the  then  day  calendar.  Cases  not  disposed  of 
on  any  day  are  to  be  placed  at  the  head  of  the  next  day  calen- 
dar until  disposed  of.  In  the  third  department  (rule  5),  the 
day  calendar  consists  of  such  number  of  causes  as  the  court 
directs.  In  the  second  department  (rule  4)  the  day  calendar 
for  the  first  and  third  Mondays  of  the  term  consists  of  non- 
enumerated  causes  only,  and  the  hearing  of  such  causes  con- 
tinues from  day  to  day  until  completed.  For  other  days  it 
consists  of  twelve  causes,  placed  thereon  from  the  general  cal- 
endar in  their  numerical  order.  In  the  first  department  (rule 
6),  the  clerk  makes  up  each  day  a  calendar  of  fifteen  enumer- 
ated cases  for  the  next  day. 

In  fourth  (rule  6)  department,  no  case  shall  be  put  upon  the 
day  calendar,  unless  it  has  been  reserved  for  that  day  by  stipu- 
lation filed  with  the  clerk,  or  unless  written  notice  is  served 
upon  the  clerk  at  or  after  the  commencement  of  the  term,  by 
the  attorney  on  one  side  or  the  other,  that  such  a  case  is  in- 
tended to  be  moved  when  called  in  its  regular  order,  and  any 
case  not  placed  on  the  day  calendar  in  its  order  on  the  gen- 
eral calendar,  will  be  regarded  as  passed  for  the  term  unless 
reserved  or  put  over  with  the  consent  of  the  court.  The  same 
rule  prevails  in  the  third  department  (rule  6)  except  as  to  the 
first  twenty  causes  on  the  general  calendar  which  cannot  be 
reserved  by  stipulation  without  consent  of  the  court,  on  appli- 
cation made  on  the  first  day  of  the  term. 

§  2750.    Exchange  of  cases. 

In  the  third  and  fourth  departments,  no  exchange  of  cases 
will  be  allowed  unless  both  cases  are  ready  for  argument,  and 
counsel  intend  to  argue  them  at  the  same  term  at  which  the 


ft  2751  CALENDARS,  ETC.  3825 


Art.  II.     In  Appellate  Division. 


exchange  is  made ;  and  when  eases  are  exchanged,  each  shall 
occupy  the  proper  position  of  the  other  in  date,  on  the  same 
and  every  subsequent  calendar,  until  heard.  A  preferred  case, 
exchanged  for  one  not  preferred,  or  set  down  for  a  particular 
day,  shall  lose  its  preference,  and  no  case  will  be  called  more 
than  once  during  the  same  term,  unless  it  shall  have  been  re- 
served or  postponed  with  consent  of  the  court. 

§  2751.    Reservation  of  causes. 

In  the  fourth  department  (rule  8),  no  reservation  will  be 
made  of  any  of  the  first  eight  cases  upon  the  general  calendar, 
unless  on  account  of  sickness,  or  an  engagement  of  counsel 
elsewhere  in  the  actual  trial  or  argument  of  another  ease  in  a 
court  of  record,  commenced  before  the  term  of  court,  or  other 
inevitable  necessity  to  be  shown  by  affidavit.  Other  cases 
may  be  reserved  upon  reasonable  cause  shown,  or  by  stipu- 
lation of  parties,  filed  with  the  clerk,  but  no  case  shall  be 
so  reserved  by  stipulation  after  the  same  has  been  placed 
upon  the  day  calendar.  Cases  reserved  for  a  day  certain  by 
stipulation,  when  in  order  to  be  called,  have  priority  among 
each  other  according  to  their  number  on  the  calendar,  and 
shall  follow  next  in  order  the  undisposed  of  cases  on  the  cal- 
endar for  the  day  previous.  Default  may  be  taken  in  them,, 
and  they  will,  if  passed,  be  put  upon  future  calendars  as  if' 
passed  in  the  regular  call. 

In  the  third  department  (rule  6)  the  first  twenty  causes  on 
the  general  calendar  cannot  be  reserved  by  stipulation  except 
by  consent  of  the  court,  on  application  made  on  the  first  day 
of  the  term. 

In  the  second  department,  causes  can  be  reserved  by  consent, 
for  a  clay  subsequent  to  the  time  when  they  would  be  reached 
in  their  order  only  when  a  stipulation  to  that  effect  is  filed 
with  the  clerk  before  the  day  calendar  is  made  up  (one  o'clock 
p.  m.) 

In  the  first  department,  at  any  time  after  the  filing  of  a  note 
of  issue  in  an  enumerated  cause,  and  before  it  shall  have  been 
placed  on  the  day  calendar,  a  written  consent,  signed  by  the 
N.  Y.  Prac— 240. 


3826  CALENDARS,  ETC.  §  2751 


Art.   II.     In  Appellate  Division. 


attorneys  or  counsel  who  are  to  argue  the  case,  that  the  appeal 
be  set  down  for  any  future  day  of  the  term  prior  to  the  third 
Thursday  thereof,  may  be  filed  with  the  clerk,  and  such  case 
shall  be  placed  on  the  day  calendar  for  such  day  at  the  end  of 
the  cases  remaining  thereon  undisposed  of  in  the  order  in 
which  they  have  been  set  down,  provided  that  no  more  than 
fifteen  cases  shall  be  placed  on  any  day  calendar  and  provided 
that  such  cases  would  have  been  reached  on  the  general  calen- 
dar if  not  set  down.  At  any  time  before  three  o'clock  of  the 
day  preceding  the  day  upon  which  a  "non-enumerated"  case 
shall  have  been  noticed  for  argument,  or  to  which  the  hearing 
thereof  shall  have  been  adjourned,  the  respective  parties  may 
file  a  written  consent  with  the  clerk  that  the  case  may  be  set 
down  for  a  subsequent  motion  day ;  and  cases  set  down  will  be 
added  to  the  calendar  of  that  day  at  the  foot  of  the  cases  re- 
maining thereon  undisposed  of  without  further  notice. 

An  enumerated  case  on  the  day  calendar,  in  the  first  depart- 
ment (rule  6)  will  not  be  reserved  or  postponed  except  by 
order  of  the  court  on  special  cause  shown. 


CHAPTER  XIII. 
HEARING. 

Where,  and  by  whom,  heard,  §  2752. 

In  appellate  division. 

•  Time  for  hearing,  §  2753. 
Postponement  of  hearing,  §  2754. 
Submission  without  argument,  §  2755. 
Argument,  §  2756. 

In  appellate  division. 

Motions,  §  2757. 

In  appellate  division. 

§  2752.     Where,  and  by  whom,  heard. 

In  the  court  of  appeals,  every  cause  shall  be  deemed  to  be 
submitted  to  such  judges  as  may  be  absent  at  the  time  of  argu- 
ment, unless  objection  to  such  submission  by  counsel  arguing 
the  cause  be  then  made.1 

In  appellate  division.     An  appeal  taken  to  the  appellate 

division  of  the  supreme  court  must  be  heard  in  the  department, 
embracing  the  ctfunty,  in  which  the  judgment  or  order  ap- 
pealed from  is  entered,  unless  an  order  is  made,  as  prescribed 
in  section  231  of  the  Code,  directing  that  it  be  heard  in  another 
department,  or  unless  appeals  pending  in  one  department  are 
transferred  for  hearing  and  determination  to  another,  pursu- 
ant to  article  six,  section  two,2  of  the  Constitution.3 

An  appeal  to  the  supreme  court  must  be  heard  by  the  ap- 
pellate division  of  the  supreme  court,  except  that  (1)  appeals 
from  the  judgment  of  any  municipal  court  in  either  of  the  bor- 
oughs of  Manhattan  or  the  Bronx  in  the  city  of  New  York  or 

i  Rule  8  of  the  court  of  appeals. 

2  The  Code  refers  to  section  one  but  this  is  evidently  a  mistake  and 
section  two  is  meant. 
a  Code  Civ.  Proc.  §  1355. 


3828  HEARING  ON  APPEAL.  §  2754 


Where,  and  bjr  Whom,  Heard. 


from  a  judgment  or  order  of  the  city  court  in  the  city  of  New 
York,  may  be  heard  by  the  appellate  division  of  the  supreme 
court,  or  by  such  justice  or  justices  of  the  supreme  court  as 
may  be  clesiguated  for  that  purpose  by  the  justices  of  the 
appellate  division  sitting  in  the  first  judicial  department;  and 
i  xcept  that  (2)  appeals  from  inferior  courts  formerly  heard 
by  the  superior  court  of  Buffalo,  now  abolished,  shall  be  heard 
by  the  appellate  division  in  the  fourth  judicial  department  or 
by  such  justice  or  justices  of  the  supreme  court  as  may  be  des- 
ignated for  that  purpose  by  the  justices  of  the  appellate  di- 
vision of  the  fourth  judicial  department.4 

§  2753.     Time  for  hearing. 

In  the  court  of  appeals,  motions  and  appeals  from  orders  are 
heard  on  the  first  day  of  the  term. 

Non-enumerated  motions  in  the  appellate  division  and  ap- 
peals from  orders  will  be  heard  on  the  first  day  of  each  term 
and  on  the  Friday  of  each  subsequent  week  immediately  after 
the  opening  of  court  on  those  days,5  except  where  the  appellate 
division  in  any  department,  by  special  rule,  assigns  other  days 
for  such  hearing.6 

§  2754.     Postponement  of  hearing. 

A  postponement  of  the  argument  will  be  permitted  to  al- 
low an  application  to  the  lower  court  for  an  amendment  of  the 
record,7  or  to  apply  to  substitute  a  person  as  a  party  in  place 

•i  Code  Civ.  Proc.  §  1344. 

s  Rule  44  of  General  Rules  of  Practice. 

8  First  department — first,  second  and  third  Fridays  of  each  term  and 
days  designated  in  July,  August  and  September.  Second  department — 
first  and  third  Mondays  of  term.  Third  and  fourth  departments — first 
day  of  term  and  each  succeeding  Friday  but  causes  not  reached  on  first 
day  will  be  disposed  of  before  taking  up  the  general  calendar. 

t  Rice  v.  Isham,  1  Keyes,  44;  Westcott  v.  Thompson,  16  N.  Y.  613. 
Postponement  only  in  exceptional  cases.  Queen  v.  Weaver,  166  N.  Y. 
398. 

s  Shaler  &  Hall  Quarry  Co.  v.  Brewster,  32  N.  Y.  472. 


§  2756  HEARING  ON  APPEAL.  3829 

Postponement. — Argument. 

of  a  deceased  party,s  but  not,  where  the  case  is  on  the  day  cal- 
endar, merely  for  the  convenience  of  counsej.9 

§  2755.     Submission  without  argument. 

Both  in  the  court  of  appeals  and  in  the  appellate  division, 
one  or  both  of  the  parties  may  submit  the  cause  without  argu- 
ment, after  delivering'  the  necessary  papers  and  points,  but  no 
advantage  on  the  calendar  can  be  gained  thereby.  In  the 
first  and  third  departments  of  the  appellate  division,  if  both 
parties  desire  to  submit,'  they  may  do  so  at  any  time  during  the 
term  by  delivering  to  the  clerk  the  cases  and  points  required 
by  General  Rule  43,  and  either  party  may  submit  his  points 
when  the  case  is  called,  if  the  other  party  desires  to  argue 
orally  on  his  part.  So,  in  the  first  department,  appeals  from 
orders  which  have  been  placed  upon  the  calendar  may  be  sub- 
mitted by  the  parties,  with  the  approbation  of  the  court,  at 
any  time  during  the  term,  upon  delivering  to  and  leaving  with 
the  clerk  the  requisite  number  of  printed  copies  of  the  points. 

§  2756.     Argument. 

In  the  court  of  appeals,  in  the  argument  of  a  cause,  not  more 
than  two  hours  shall  be  occupied  by  counsel  on  either  side,  ex- 
cept by  the  express  permission  of  the  court.  In  the  argument 
of  an  appeal  from  an  order  not  more  than  twenty  minutes 
shall  be  occupied  by  the  appellant's  counsel,  nor  more  than 
fifteen  minutes  by  the  respondent's  counsel,  without  express 
permission  of  the  court.10 

In  appellate  division.     The  General  Rules  of  Practice 

provide  that  at  the  hearing  of  causes  in  the  appellate  division, 
unless  the  court  shall  otherwise  order,  not  more  than  one 
counsel  shall  be  heard  on  each  side,  and  not  for  more  than  an 
hour  each,  or  thirty  minutes  each  on  appeals  from  orders  and 

o  Bank  of  Salina  v.  Alvord,  32  N.  Y.  684.  Engagements  of  counsel 
no  ground.  Starr  v.  Benedict,  19  Johns.  455;  Tyron  v.  Jennings,  12 
Abb.  Pr.  33,  22  How.  Pr.  421. 

io  Rule  13  of  the  court  of  appeals. 


3830  HEARING  ON  APPEAL.  §  2757 

Motions. 

on  non-enumerated  motions.11  In  the  first  department  (rule 
3),  only  fifteen  minutes  is  allowed  each  side  on  an  appeal  from 
an  order.  In  the  third  department  (rule  12),  on  appeals  from 
judgments  in  negligence  actions,  the  argument  of  counsel  is 
limited  to  one-half  hour  for  each  party. 

§  2757.     Motions. 

Motions  in  the  court  of  appeals  should  be  on  eight  days'  no- 
tice unless  an  order  to  show  cause  is  obtained  or  unless  notice 
is  waived  or  short  notice  accepted.  Motion  papers  need  not 
be  printed,  except  on  a  motion  for  a  reargument,  nor  need  they 
be  filed  unless  they  are  to  be  submitted  without  oral  argument 
in  which  case  they  should  be  sent  to  the  clerk  on  or  before  the 
Saturday  preceding  the  motion  day  for  which  noticed.  Counsel 
will  be  heard  briefly  except  on  motions  for  reargument  which 
must  be  submitted.12 

Where,  in  the  court  of  appeals,  notice  has  been  given  of  a 
motion,  if  no  one  shall  appear  to  oppose,  it  will  be  granted  as  of 
course.  If  a  motion  be  not  made  on  the  day  for  which  it  has 
been  noticed,  the  opposing  party  will  be  entitled,  on  applying 
to  the  court  at  the  close  of  the  motions  for  that  day,  to  a  rule 
denying  the  motion  with  costs.13 

In  appellate  division.  If  a  non-enumerated  motion  no- 
ticed to  be  heard  at  the  appellate  division  shall  not  be  made 
upon  the  day  for  which  it  is  noticed,  the  party  attending  pur- 
suant to  notice  to  oppose  the  same  may,  at  the  close  of  that 
order  of  business,  unless  the  court  shall  otherwise  order,  take  a 
rule  against  the  party  giving  the  notice,  denying  the  motion, 
with  costs.14 

ii  Rule  47  of  General  Rules  of  Practice. 
12  Smith,  Ct.  of  App.  Pr.  72b. 
is  Rule  11  of  the  court  of  appeals. 
i-tRule  44  of  General  Rules  of  Practice. 


CHAPTER  XIV. 

REHEARING. 

General  considerations,  §  2758. 
Grounds,  §  2759. 
Who  may  move,  §  2760. 
Time  for  motion,   §  2761. 
Motion  papers,  §  2762. 

Notice  of  motion. 

Briefs,  §  2763. 
Copy  of  opinion,  §  2764. 
Delivering  papers  to  clerk,  §  2765. 
Hearing  of  motion,  §  2766. 

Argument. 

Discretion  of  court. 

§  2758.     General  considerations. 

Applications  for  reargument  are  not  looked  on  with  favor/ 
especially  where  sought  in  a  court  other  than  a  court  of  last 
resort.  A  rehearing  may  be  denied  by  the  appellate  division 
though  it  might  be  granted  if  the  case  was  in  the  court  of  ap- 
peals, though  ordinarily  the  rules  as  to  when  a  reargument 
will  be  granted  are  the  same  in  both  courts.2  It  would  seem 
that  the  appellate  division  should  more  readily  grant  a  re- 
hearing in  a  case  not  appealable  as  of  right  to  the  court  of 
appeals. 

§  2759.     Grounds. 

The  recognized  grounds  for  reargument  of  a  case  are  rarely 
departed  from  though  the  court  of  appeals  has  reexamined  the 
case  because  of  its  extraordinary  importance  though  no  reeog- 

i  Trinity  Church  v.  Higgins,  27  Super.  Ct.   (4  Rob.)  372. 

2  That  court  other  than  court  of  appeals  should  allow  reargument 
only  in  extraordinary  cases,  see  Newell  v.  Wheeler,  27  Super.  Ct.  (4 
Rob.)  190,  194.     On  denying  motion  for  reargument,  the  order  may  be 


3S32  REHEARING  OF  APPEAL.  ft  2759 

Grounds. 

nixed  ground  for  a  reargument  existed.3  The  general  rule  4 
is  that  a  reargument  will  not  be  granted  unless  it  is  shown 
either  that  (1)  some  question  decisive  of  the  case  and  duly 
submitted  by  counsel  was  overlooked;5  or  (2)  the  decision  is 
in  conflict  with  an  express  statute;0  (3)  a  controlling  de- 
cision7 to  which  the  court's  attention  was  not  called;  or  (4)  a 
court  of  higher  resort  has  decided  the  precise  question  ad- 
versely since  the  decision. s 

A  reargument  will  be  ordered  in  the  appellate  division 
where  the  decision  is  based  on  a  decided  point  of  law  in  a  case 
which  has  thereafter  been  reversed  as  to  such  rule  of  law  by 

amended,  as  by  granting  a  new  trial  instead  of  dismissing  the  com- 
plaint.    Giles  v.  Austin,  34  Super.  Ct.   (2  J.  &  S.)  540,  545. 

3  See  O'Brien  v.  City  of  New  York,  142  N.  Y.  671. 

^Fosdick  v.  Town  of  Hempstead,  126  N.  Y.  651;  Banks  v.  Carter,  7 
Daly,  417;  Hand  v.  Rogers,  16  Misc.  364,  38  N.  Y.  Supp.  2. 

5  Irvine'v.  F.  H.  Palmer  Mfg.  Co.,  2  App.  Div.  385,  39  N.  Y.  Supp.  245. 
But  a  reargument  will  not  be  granted  because  an  important  point  was 
not  considered  unless  it  shall  clearly  appear,  as  an  undisputed  fact, 
that  it  was  not  considered,  and  that  it  presents  a  fair  question  for  dis- 
cussion. If  the  decision  necessarily  involves  the  point,  a  reargument 
will  not  be  granted.  Guidet  v.  City  of  New  York,  37  Super.  Ct.  (5  J.  & 
S.)  124.  It  cannot  be  assumed  .that  any  particular  point  has  been  over- 
looked because  not  discussed  in  the  opinion.  Ernst  v.  Estey  Wire 
Works  Co.,  21  Misc.  68,  46  N.  Y.  Supp.  918;  Chatterton  v.  Chatterton, 
34  App.  Div.  245,  54  N.  Y.  Supp.  515;  Edgerley  v.  Long  Island  R.  Co., 
46  App.  Div.  284,  61  N.  Y.  Supp.  677. 

6  This  is  not  ground,  however,  where  the  statute  was  not  urged  as 
controlling  either  at  the  trial  or  on  the  argument,  because  neither 
court  nor  counsel  knew  of  its  existence.  Walsh  v.  Brown,  24  State 
Rep.  722,  6  N.  Y.  Supp.  97. 

i  Coleman  v.  Livingston,  36  Super.  Ct.  (4  J.  &  S.)  231;  Myers  v. 
Dean,  10  Misc.  402,  31  N.  Y.  Supp.  119.  Decision  must  be  one  clearly 
in  point.  Heywood  v.  Thacher,  47  State  Rep.  316,  19  N.  Y.  Supp.  882. 
Dicta  not  sufficient.  Van  Rensselaer  v.  Wright,  34  State  Rep.  438,  12 
N.  Y.  Supp.  330. 

s  Hand  v.  Rogers,  16  Misc.  364,  38  N.  Y.  Supp.  2;  Taylor  v.  Grant,  36 
Super.  Ct.  (4  J.  &  S.)  259.  The  appellate  division  must  overrule  its 
decision  where  the  court  of  appeals  has,  in  the  interim,  decided  tbe 
point  the  other  way.  Walsh  v.  Hanan,  93  App.  Div.  580,  87  N.  Y. 
Supp.  930. 


ft  2759  REHEARING  OF  APPEAL.  3833 

Grounds. 

the  court  of  appeals.0  The  reversal  of  a  case  involving  the 
same  questions,  by  the  court  of  appeals,  without  opinion  is  ordi- 
narily not  ground,  but  a  reargument  will  be  granted  in  such  a 
case  where  it  was  stipulated  that  the  action  at  bar  was  in  effect 
to  be  governed  by  the  appealed  action.10 

The  following  have  been  held  not  grounds  for  reargument: 
That  judges,  in  their  consultation,  were  equally  divided  in 
their  opinion;  "  that  counsel  was  not  fully  prepared  to  argue 
the  appeal ; 12  that,  as  counsel  believes,  the  court  did  not  fully 
understand  the  questions ; 13  that  the  cause  was  submitted  in- 
stead of  being  argued  orally ; 14  omission  of  the  appellant  to 
present  on  the  argument  a  point  appearing  in  the  case  ;13  death 
of  plaintiff  when  appeal  was  argued  and  decided ; 16  facts  not 
appearing  in  the  record ; 17  that  court  overlooked  authorities 
and  erred  in  supposing  that  it  could  render  a  decree  under  the 
particular  form  of  the  pleadings.ls 

A  reargument  will  not  be  granted  by  the  court  of  appeals 
after  the  order  of  reversal  by  the  appellate  division  is  amended 
so  as  to  show  that  the  reversal  was  on  the  facts.19 

A  rehearing  will  not  be  granted  where  no  advantage  could 
result  from  it,20  nor  to  allow  an  attack  on  the  correctness  of 

9  Freeman  v.  Falconer,  44  Super.  Ct.  (12  J.  &  S.)  579.  This  rule  does 
not  apply  where  an  authority  cited  on  an  incidental  matter  is  reversed. 
Matter  of  Evans'  Will,  65  App.  Div.  610.  72  N.  Y.  Supp.  493. 

io  Butterfield  v.  Radde,  40  Super.  Ct.  (8  J.  &  S.)  169. 

ii  Mason  v.  Jones,  3  N.  Y.  (3  Comst.)  375. 

i2,  13  Drucker  v.  Patterson,  2  Hilt.  135. 

i^Weldon  v.  De  Lisle,  8  App.  Div.  610,  41  N.  Y.  Supp.  1134. 

is  The  ordinary  rule  is  that  an  exception  not  raised  on  the  argument 
is  deemed  abandoned.  Rogers  v.  Laytin,  80  N.  Y.  637.  Jones  v.  Brins- 
made,  93  N.  Y.  Supp.  674. 

io  Blake  v.  Griswold,  4  State  Rep.  285. 

it  Heywood  v.  Thacher,  47  State  Rep.  316,  19  N.  Y.  Supp.  882.  Re- 
argument will  not  be  ordered  to  dispose  of  a  question  not  disclosed  by 
the  record.     Nelson  v.  Hatch,  57  App.  Div.  572,  68  N.  Y.  Supp.  501. 

is  Trinity  Church  v.  Higgins,  27  Super.  Ct.  (4  Rob.)  372. 

is  Cudahy  v.  Rhinehart,  133  N.  Y.  675. 

soTeaz  v.  Chrystie,  2  E.  D.  Smith,  635,  2  Abb.  Pr.  259.  Reargument 
in  court  of  appeals  to  present  point  not  argued  originally  will  not  be 
granted  where  there  was  no  exception  raising  the  point  in  the  original 


3834  REHEARING  OF  APPEAL.  §  2761 

Grounds. — Motion. 

a  former  decision,21  nor  to  correct  an  error  in  the  reasoning 
of  the  court  as  expressed  in  the  opinion,  when  it  is  admitted 
thai  the  decision  itself  is  correct.22 

A  motion  for  a  reargument  as  to  a  particular  point  has  been 
denied  where  a  new  trial  had  been  ordered  so  that  the  question 
could  be  specifically  raised  in  the  lower  court,  and,  if  decided 
adversely  to  appellants,  be  reviewed  on  a  second  appeal. -'■'• 

§  2760.     Who  may  move. 

It  would  seem  that  only  a  party  to  the  record  can  apply  for 
a  rehearing.  A  motion  for  a  reargument  made  by  one  appel- 
lant cannot  be  treated  as  an  application  in  behalf  of  all,  unless 
it  affirmatively  appears  that  it  is  made  on  their  behalf,  and 
hence  the  motion  will  not  be  granted  if  the  applicant  is  not 
entitled  thereto  notwithstanding  that  the  other  appellants 
might  be  entitled  thereto.24 

§  2761.     Time  for  motion. 

The  court  of  appeals  holds  that  a  reargument  will  not  be 
ordered  where  the  jurisdiction  of  the  cause  has  become  vested 
in  the  court  below,  as  where  the  remittitur  has  been  sent  down 
and  not  returned.  After  the  remittitur  has  been  filed  in  the 
court  below,  and  the  usual  order  entered  thereon,  it  must  be 
returned  by  the  direction  of  the  lower  court,  before  the  court 
of  appeals  can  grant  a  reargument.25 

If  it  is  intended  to  move  for  a  reargument  in  the  court  of 
appeals,  a  stipulation  should  be  obtained  from  the  other  side, 

record.  Hunt  v.  Church,  73  N.  Y.  615.  Motion  for  reargument  denied 
where  the  errors  complained  of  had  not  been  specifically  pointed  out 
in  the  notice  of  motion  on  which  the  order  appealed  from  was  granted. 
Oliver  v.  French,  65  State  Rep.  720,  32  N.  Y.  Supp.  576. 

aiMcGarry  v.  New  York  County  Sup'rs,  31  Super.  Ct.  (1  Sweeny) 
217. 

22  Matter  of  Lyman,  161  N.  Y.  119. 

23  People  v.  Ballard,  136  N.  Y.  639. 

24  McCreery  v.  Ghormley,  9  App.  Div.  221,  41  N.  Y.  Supp.  167. 

-■-•  Wilmerdings  v.  Fowler,  15  Abb.  Pr.  (N.  S.)  86;  Franklin  Bank 
Note  Co.  v.  Mackey,  158  N.  Y.  683. 


§  2762 


REHEARING  OF  APPEAL.  3835 

Time  for  Motion. — Motion  Papers. 


or  an  order  from  one  of  the  judges,  staying  the  remittitur,  in 
ease  it  has  not  gone  down,  or  staying  proceedings  thereon  in 
case  it  has  gone  down  but  not  been  acted  on.  If  the  remittitur 
has  been  filed  and  action  taken  thereon  in  the  court  below,  a 
preliminary  application  should  be  made  to  the  court  of  ap- 
peals for  an  order  requesting  the  court  below  to  return  the  re- 
mittitur, or  else  such  application  should  be  inserted  in  the 
moving  papers  for  a  reargument,  and  the  court  should  be 
asked  therein  to  request  the  return  of  the  remittitur  and  there- 
upon grant  a  reargument.26 

The  appellate  division  will  not  grant  a  motion  for  a  reargu- 
ment where  the  defeated  party  has  allowed  his  time  to  appeal 
to  the  court  of  appeals  to  expire,27  nor  after  an  appeal  has 
been  taken  to  the  court  of  appeals.28 

The  fact  that  judgment  has  been  entered  in  the  appellate 
court  does  not  preclude  the  right  to  hear  a  reargument.29 

§  2762.     Motion  papers. 

A  motion  for  reargument  must  be  founded  on  papers  show- 
ing that  some  question  decisive  of  the  case  and  duly  submitted 
by  counsel  has  been  overlooked  by  the  court,  or  that  the  de- 
cision is  in  conflict  with  a  statute,  or  with  a  controlling  decis- 
ion to  which  the  attention  of  the  court  was  not  directed 
through  the  neglect  or  inadvertence  of  counsel.30  The  motion 
papers  should  enable  the  court  to  determine  whether  the  de- 
cision requires  correction  in  any  respect;  and  where  the  de- 

20  Smith,  Ct.  of  App.  Pr.  124. 

27  Cuykendall  v.  Douglass,  17  Wkly.  Dig.  315. 

28  Matter  of  Citizens'  Water  Works  Co.,  60  Hun,  585,  39  State  Rep. 
747,  15  N.  Y.  Supp.  579;  Jung  v.  Keuffel,  12  Misc.  89,  32  N.  Y.  Supp. 
1136. 

29  St.  Michael's  Protestant  Episcopal  Church  v.  Behrens.  10  Civ. 
Proc.  R.   (Browne)   181. 

so  Fosdick  v.  Town  of  Hempstead,  126  N.  Y.  651,  following  Mount  v. 
Mitchell,  32  N.  Y.  702;  Marine  Nat.  Bank  v.  National  City  Bank,  59  N. 
Y.  67;  Auburn  City  Nat.  Bank  v.  Hunsiker,  72  N.  Y.  252.  The  matters 
overlooked  must  be  specified.  "Von  Wagoner  v.  Royce,  66  Hun,  631,  21 
N.  Y.  Supp.  191. 


3836  REHEARING  OP  APPEAL.  §  2703 


Motion  Papers. — Briefs. 


i  was  upon  a  dissenting  opinion  in  the  court  below,  the 
rase  on  appeal  containing  the  opinion  of  the  lower  court 
should  be  furnished.31  The  jurisdiction  of  the  court  of  ap- 
peals being  confined  to  a  review  of  determinations  actually 
made  by  the  supreme  court,  which  must  be  had  on  the  same 
papers  which  were  before  the  appellate  division,  the  court  can- 
not permit  a  reargument  upon  papers  showing  proceedings  in- 
stituted to  amend  defects  in  the  original  proceedings  since  the 
determinations  sought  to  be  reviewed.32 

Notice  of  motion.     A  motion  for  reargument  will  only 

be  heard  on  notice  to  the  adverse  party,  stating  briefly  the 
ground  on  which  a  reargument  is  asked  33 

In  the  first  department  motions  for  reargument  must  be 
noticed  for  the  term  succeeding  that  on  which  the  appeal  was 
decided.34 

Motions  for  reargument  should  be  noticed  for  a  motion  day. 

The  motion  in  the  appellate  division  is  sometimes  made  in 
the  alternative  for  a  reargument  or  for  leave  to  appeal  to  the 
court  of  appeals.35 

§  2763.     Briefs. 

Motions  for  reargument  must  be  submitted  on  printed  briefs, 
stating  concisely  the  points  supposed  to  have  been  overlooked 
or  misapprehended  by  the  court,  with  proper  reference  to  the 
particular  portion  of  the  case,  and  the  authorities  relied 
upon.36 

3i  Anderson  v.  Continental  Ins.  Co.,  106  N.  Y.  661.  See,  also,  post, 
note  37. 

32  Matter  of  New  York  Cable  Co.,  104  N.  Y.  1.  Rehearing  may  be 
granted  by  appellate  division.     Id. 

33  Rule  20  of  the  court  of  appeals;  Rules  8  (first  dept),  11  (second 
and  third  depts.),  14  (fourth  dept.)  of  department  rules  of  the  appel- 
late division. 

34  Rule  8  of  the  first  department  of  appellate  division. 

ss  See  Roeber  v.  New  Yorker  Staats  Zeitung,  2  App.  Div.  163,  37  N. 
Y.  Supp.  719. 

so  Rule  20  of  the  court  of  appeals.  Rule  8  of  first  department  of  ap- 
pellate division;  rule  11  of  second  department;  rule  11  of  third  depart- 
ment;  rule  14  of  fourth  department. 


§  2766  REHEARING  OF  APPEAL.  3837 


Hearing  of  Motion. 


§  2764.     Copy  of  opinion. 

In  the  appellate  division  a  copy  of  the  opinion  of  the  appel- 
late division  must  be  submitted  together  with  the  briefs.37 

§  2765.    Delivering  papers  to  clerk. 

The  original  motion  papers  and  notice,  with  proof  or  ad- 
mission of  service,  and  the  necessary  copies  of  the  printed 
points  on  each  side  of  the  motion,  should  be  delivered  to  the 
clerk  on  or  before  the  opening  of  the  court  on  the  day  named 
in  the  notice. 

§  2766.     Hearing  of  motion. 

The  court  cannot  go  outside  the  record  or  consider  material 
facts  for  the  first  time  brought  to  its  notice  on  the  motion  for 
reargument.38  And  the  court  cannot  allow  the  appellant  to 
amend  his  case  and  hear  the  reargument  on  such  amended  case, 
since  any  rehearing  must  be  on  the  same  record.39 

Argument.     Counsel  will  not  be  heard  orally  either  in 

the  court  of  appeals  or  in  the  appellate  division.40 

Discretion  of  court.     The  motion  for  a  reargument  is 

addressed  to  the  discretion  of  the  court.41 

37  Rule  8  of  first  department  of  appellate  division;  rule  11  of  second 
and  third  departments;  rule  14  of  fourth  department.  In  first  depart- 
ment a  printed  copy  is  required.     Rule  8  of  rules  of  first  department. 

38  People  ex  rel.  Dady  v.  Thirty-First  Ward  Sup'r,  91  Hun,  206,  36  N. 
Y.  Supp.  348. 

39  Wright  v.  Terry,  24  Hun,  228. 

to  Rule  20  of  the  court  of  appeals;  Rules  8  (first  dept),  11  (second 
and  third  depts.),  13  (fourth  dept.)  of  department  rules  of  appellate 
division. 

4i  Holmes  v.  Rogers,  18  State  Rep.  652,  2  N.  Y.  Supp.  501;  Hooper  v. 
Beecher,  109  N.  Y.  609. 


CHAPTER  XV. 

DISMISSAL  OR  WITHDRAWAL  OF  APPEAL. 

Dismissal  by  consent,  §  2767. 

Dismissal  on  motion  of  appellant,  §  2768. 

Nature  and  propriety  of  motion  by  respondent,  §  2769. 

Grounds  for  dismissal,  §  2770. 

Failure  to  give  undertaking. 

Failure  to  prosecute  proceedings. 

Omissions  in  tbe  record. 

Failure  to  make,  serve,  or  file  case. 

Failure  to  substitute  person  as  party  or  attorney. 

Matters  relating  to  tbe  calendar. 

Frivolousness  of  appeal. 

Want  of  jurisdiction. 

Review  unnecessary  or  ineffectual. 

Waiver  of  rigbt  to  move,  §  2771. 
Motion,  §  2772. 

Time  for  motion. 

Wbo  may  move. 

Court  in  whicb  motion  to  be  made. 

—  Motion  papers. 

Notice  of  motion. 

Hearing,  §  2773. 

Order,  §  2774. 

Effect  of  dismissal,  §  2775. 

Reinstatement,  §  2776. 

§  2767.     Dismissal  by  consent. 

In  the  court  of  appeals,  an  appeal  may  be  dismissed  by  con- 
sent at  any  time,  by  filing  with  the  clerk  a  stipulation  to  that 
effect,  signed  by  the  respective  attorneys  for  the  several 
parties,  and  stating  whether  the  dismissal  is  to  be  with  or  with- 
out costs.  On  the  receipt  of  such  stipulation,  the  clerk  drafts 
and  enters  the  proper  order,  and,  if  a  return  has  been  filed, 
makes  up  a  remittitur,  which,  with  a  certified  copy  of  the 
order,  is  transmitted  as  may  be  directed  by  the  stipulation. 


§  2T6S         DISMISSAL  OR  WITHDRAWAL  OF  APPEAL.  3839 

By   Consent. — On   Motion    of   Appellant. 

If  the  stipulation  contains  no  direction  on  the  subject,  the 
papers  are  sent  to  the  respondent's  attorney,  if  he  so  requests; 
if  not,  they  are  sent  to  the  appellant's  attorney.  If  no  return 
has  been  filed,  only  a  certified  copy  of  the  order  is  sent  down.1 
An  appeal  to  the  appellate  division  may  also  be  dismissed 
by  consent  evidenced  by  a  stipulation  signed  by  the  attorneys 
for  all  parties  to  the  appeal. 

§  2768.     Dismissal  on  motion  of  appellant. 

It  sometimes  happens  that  the  appellant  desires  to  withdraw 
his  appeal  after  it  is  perfected.  This  often  occurs  where  he 
has  appealed  to  the  court  of  appeals  and  given  a  stipulation 
for  judgment  absolute  but  afterwards  wishes  to  be  relieved 
from  such  stipulation  and  have  a  new  trial  in  the  lower  court. 
The  appellant  cannot  withdraw  the  appeal,  at  his  pleasure, 
unless  the  other  parties  to  the  appeal  consent,  but  must  obtain 
an  order  from  the  appellate  court,2  permitting  him  to  withdraw 
his  appeal.  An  appeal  is  not  discontinued  by  the  mere  service 
of  a  notice  of  withdrawal  and  tender  of  costs,  but  an  order  of 
court  is  necessary.3 

"Where  a  party  has  in  good  faith  appealed  from  an  order 
granting  a  new  trial  and  given  a  stipulation  for  judgment  ab- 
solute but  he  discovers  his  mistake  in  appealing  before  the  argu- 
ment, he  will  ordinarily  be  allowed  to  withdraw  his  appeal,  on 
payment  of  costs,4  especially  where  the  appeal  was  a  nullity 
because  no  final  judgment  had  been  entered ; 5  but  leave  to 
withdraw  the  appeal  will  not  be  granted  where  several  years 
have  elapsed  since  the  reversal  unless  the  merits  of  the  appeal 
are  clearly  shown.0     Where  a  stipulation  for  judgment  abso- 

i  Smith,  Ct.  of  App.  Pr.  89. 

2  Court  from  which  appeal  is  taken  cannot  grant  order.  Powell  v. 
Schenck,  6  App.  Div.  130,  39  N.  Y.  Supp.  877. 

s  Weinman  v.  Dilger,  46  Super.  Ct.  (14  J.  &  S.)  101;  Burnett  v.  Hark- 
ness,  4  How.  Pr.  158,  2  Code  R.  100. 

■iMackay  v.  Lewis,  73  N.  Y.  382;  Brown  v.  Simmons,  14  Daly,  450. 

s  Vernon  v.  Palmer,  5  Civ.  Proc.  R.  (Browne)  233,  67  How.  Pr.  18,  48 
Super.  Ct.  (16  J.  &  S.)  233. 

o  Post  v.  Hathorn,  54  N.  Y.  147,  152. 


3840  DISMISSAL  OR  WITHDRAWAL  OF  APPEAL.  §2769 

On  Motion  of  Appellant. 

lute  has  been  given,  the  court  of  appeals  may  allow  appellant 
to  withdraw  the  appeal,  where  the  appeal  brings  up  no  ques- 
tion for  review,  though  the  motion  is  not  made  until  the  argu- 
ment is  pending.7 

Where  the  order  of  reversal  is  amended  by  the  appellate 
division  so  as  to  show  that  the  reversal  was  both  on  questions 
of  law  and  questions  of  fact,  leave  to  withdraw  the  appeal,  on 
terms,  has  been  granted  by  the  court  of  appeals.8 

After  a  settlement  of  the  cause,  without  notice  to  the  judg- 
ment creditor's  attorney,  an  appeal  will  not  be  allowed  to  be 
withdrawn,  where  it  will  affect  his  rights,9  unless  he  has  ceased 
to  represent  the  appellant.10 

The  order,  when  granted,  is  usually  conditioned  on  the  pay- 
ment  of  the  accrued  costs  and  the  costs  of  the  motion.11  "Where 
an  appeal  is  taken  instead  of  moving  for  a  new  trial,  the  ap- 
pellate division  may  correct  the  practice  by  ordering  appellant 
to  stipulate  to  withdraw  the  notice  of  appeal  and  substitute  a 
motion  for  a  new  trial  and  pay  the  costs  of  the  appeal.12 

§  2769.     Nature  and  propriety  of  motion  by  respondent. 

A  motion  to  dismiss  an  appeal  in  effect  requests  the  appel- 
late court  to  refuse  to  examine  the  merits  of  the  cause.  It  is 
only  where  time  may  be  gained  and  the  appeal  be  disposed 
of  before  the  case  in  chief  can  be  presented  that  a  special  mo- 
tion to  dismiss  the  appeal  should  be  deemed  available  to  the 
respondent.13  Where  the  appeal  is  effective  for  any  purpose 
it  should  not  be  dismissed.14 

-  Williams  v.  Delaware,  L.  &  W.  R.  Co.,  127  N.  Y.  643,  which  reviews 
the  prior  decisions. 

s  Lawlor  v.  Magnolia  Metal  Co.,  158  N.  Y.  743.  Terms  imposed  were 
payment  of  all  costs  and  disbursements  accrued  on  the  appeal  to  the 
court  of  appeals. 

o  Stilwell  v.  Armstrong,  28  Misc.  54G,  59  N.  Y.  Supp.  671. 

io  Holy  Trinity  Church  v.  Church  of  St.  Stephen,  128  N.  Y.  604. 

ii  An  order  dismissing  the  appeal  is  not  sufficient  until  payment  of 
the  respondent's  costs.  Burnett  v.  Harkness,  4  How.  Pr.  158,  2  Code  R. 
100. 

12  Douglas  v.  Douglas,  5  Hun,  140. 


§  2770         DISMISSAL  OR  WITHDRAWAL  OP  APPEAL.  3^1 


Grounds  for  Dismissal. 


§  2770.     Grounds  for  dismissal. 

The  grounds  for  dismissal  consist  of  facts  which  go  to  show 
that  for  some  reason  the  merits  of  the  appeal  should  not  be 
heard. 

The  appeal  may  be  dismissed  because  of  failure  to  appeal 
within  the  statutory  time/5  or  because  the  appellant  is  not  a 
person  "aggrieved"  by  the  judgment  or  order  appealed  from 
so  as  to  be  entitled  to  appeal,10  or  because  the  appeal  was  in 
violation  of  an  agreement  between  the  parties,17  or  because  of 
the  failure  to  join  as  respondents  persons  who  are  adverse 
parties,18  or  because  of  the  taking  of  an  appeal  from  the  order 
directing  judgment  instead  of  from  the  judgment,10  or  because, 
of  a  repeal  of  the  statute  authorizing  the  appeal,  pending  the 
appeal;-0  but  a  violation  by  appellant  of  a  stipulation  by 
which  he  obtained  a  stay  of  proceedings  is  not  ground.21 

The  taking  of  inconsistent  steps  after  perfecting  an  appeal 
may  warrant  a  dismissal  of  the  appeal  where  such  acts,  if  done 
before  appealing,  would  have  precluded  or  waived  the  right 
to  appeal.22  For  instance,  the  appeal  from  a  denial  of  a  mo- 
tion should  be  dismissed  where  the  denial  was  with  leave  to  re- 

13  Bryant  v.  Thompson,  36  State  Rep.  921,  14  N.  Y.  Supp.  380. 

i*  Seymour  v.  Spring  Forest  Cemetery  Ass'n,  4  App.  Div.  359,  38  N 
Y.  Supp.  726. 

is  See  ante,  §  2601.  If  both  the  judgment  and  the  order  denying  a  new- 
trial  are  appealed  from,  the  appeal  from  the  judgment  may  be  dis- 
missed for  failure  to  perfect  it  in  time,  and  the  appeal  from  the  order 
be  heard  alone.     Iaquinto  v.  Bauer,  104  App.  Div.  56,  93  N.  Y.  Supp.  388. 

ie  Matter  of  Watson  v.  Nelson,  69  N.  Y.  536,  538.  Appeal  should  be 
dismissed  only  in  a  clear  case.  Bryant  v.  Thompson,  36  State  Rep. 
921,  14  N.  Y.  Supp.  386. 

it  People  v.  Stephens,  52  N.  Y.  306. 

is  The  objection  is  waived  by  failure  to  make  the  motion.  Douglas 
v.  Yost,  64  Hun,  155,  18  N.  Y.  Supp.  830. 

is  Error  can  be  availed  of  only  by  motion  to  dismiss.  Klots  v. 
Fincke,  2  T.  &  C.  580. 

20  Gale  v.  Wells,  7  How.  Pr.  191. 

2i  Baker  v.  Stephens,  10  Abb   Pr.  (N.  S.)  1. 

22  See  ante,  §§  2574-2590. 
N.  Y.  Prac— 241. 


3S42  DISMISSAL  OR  WITHDRAWAL  OF  APPEAL.  §  2770 


Grounds  for  Dismissal. 


new  and  the  appellant  has  renewed  the  motion.2"  However, 
the  fact  that  a  party  obtains  leave  to  interpose  the  judgment 
appealed  from  as  a  bar  to  another  action  does  not  require  a 
dismissal  of  the  appeal.24 

The  question  whether  the  defect  in  the  order  appealed  from 
has  been  waived  by  appellant  by  acts  since  the  taking  of  the 
appeal  can  be  urged  only  on  a  motion  to  dismiss.25 

An  appeal  to  the  court  of  appeals  from  an  order  granting  a 
new  trial  will  be  dismissed  where  a  stipulation  for  judgment 
absolute  is  not  given.26 

Where  the  party  in  interest  notifies  its  attorney  to  stop  pro- 
ceedings, the  appeal  should  be  dismissed,  though  the  attorney 
objects.27 

Failure  to  give  undertaking.  Inasmuch  as  an  under- 
taking is  necessary  to  perfect  an  appeal  to  the  court  of  ap- 
peals, it  would  seem  that  the  failure  to  serve  and  file  one  within 
the  time  allowed  for  perfecting  the  appeal  should  be  ground 
for  dismissal,28  though  there  is  merit  in  the  contention  that  in 
the  absence  of  an  undertaking  there  is  no  appeal  and  hence 
that  there  is  nothing  to  dismiss.29  Where  a  new  undertaking 
is  ordered  in  the  court  of  appeals  because  one  or  more  of  the 
sureties  have  become  insolvent,  the  failure  to  file  and  serve  a 
new  undertaking  is  ground  for  dismissal.30  So  where  sure- 
ties are  excepted  to  and  fail  to  justify,  and  no  new  undertak- 
ing is  given,  the  appeal  may  be  dismissed  by  the  court  of  ap- 
peals.31 

^sApsley  v.  Wood,  67  How.  Pr.  406;   Harrison  v.  Neher,  9  Hun,  127. 

24  Brewster  v.  Wooster,  56  State  Rep.  844,  26  N.  Y.  Supp.  912. 

25  Woodruff  v.  Austin,  15  Misc.  450,  37  N.  Y.  Supp.  22. 

26  See  ante,  §  2539. 

27  Saratoga  Gas  &  Elec.  Light  Co.  v.  Town,  67  Hun,  645,  51  State  Rep. 
229,  22  N.  Y.  Supp.  343. 

28  Reese  v.  Boese,  92  N.  Y.  632. 

20  Benedict  &  B.  Mfg.  Co.  v.  Thayer,  82  N.  Y.  610. 

so-See  ante,  §  2678.  Rule  does  not  apply  to  appeals  to  appellate  di- 
vision. 

si  See  ante,  §  2677.  Rule  does  not  apply  to  appeals  to  appellate  di- 
vision. 


§  2770         DISMISSAL  OR  WITHDRAWAL  OF  APPEAL.  3843 


Grounds  for  Dismissal. 


Failure  to  prosecute  proceedings.     In  the  court  of  ap- 


peals an  appeal  may  be  dismissed,  without  application  to  the 
court,  where  appellant  fails  to  file  the  return  within  ten  days 
after  notice  in  writing  to  do  so,32  or  where  he  fails  to  serve 
three  printed  copies  of  the  case  on  the  attorney  for  respondent 
within  ten  days  after  notice.33  So  a  failure  to  appear  in  the 
court  of  appeals  when  the  cause  is  called  for  argument  is 
ground.34 

In  the  appellate  division,  the  appeal  will  be  dismissed,  with- 
out application  to  the  court,  where  the  case  is  twice  passed  on 
the  calendar  after  neither  party  appears.35  So  the  failure  to 
file  and  serve  printed  papers,  as  required  by  rule  41  of  the  Gen- 
eral Rules  of  Practice,  is  ground.30  Where  appellant  neglects 
to  serve  on  respondent  the  papers  on  which  the  appeal  is  to  be 
heard,  after  the  entry  of  an  order  declaring  the  case  and  ex- 
ceptions waived  or  abandoned,  the  respondent  may  move  that 
the  cause  be  struck  from  the  calendar  and  judgment  rendered 
in  his  favor.37  A  default  in  filing  and  serving  printed  papers 
may,  however,  be  opened,  on  terms.38 

Omissions  in  the  record.  Where  the  record  fails  to  pre- 
sent any  question  for  review,  the  appeal  will  be  dismissed,39 
but  the  appeal  will  not  be  dismissed  because  of  the  absence 
of  papers  from  the  appeal  book  where  the  certificate  of  the 
clerk  shows  that  they  were  not  filed,40  nor  because  part  of  the 
papers  on  which  the  order  below  was  made  are  not  embraced 
in  the  return,  unless  the  omission  is  unexplained.41 

32  See  ante,  §  2711. 

33  See  ante,  §  2713. 

34  See  ante,  §  2744. 

35  See  ante,  §  2748. 

so  See  ante,  §  2723;  Hogan  v.  Brophy,  2  Code  R.  77;  Sayer  v.  Kirchhof, 
3  Misc.  245,  22  N.  Y.  Supp.  773.  Dismissal  is  discretionary.  Wetmore 
v.  Wetmore.  137  N.  Y.  623. 

37  Smith  v.  Ingram  University,  76  Hun,  605,  28  N.  Y.  Supp.  220. 

38  Vandenbergh  v.  Mathews,  52  App.  Div.  616,  65  N.  Y.  Supp.  365. 
3'tDalzell  v.  Long  Island  R.  Co.,  119  N.  Y.  626. 

40  Rosskam  v.  Curtis,  15  App.  Div.  190,  44  N.  Y.  Supp.  198- 
4i  McGregor  v.  Comstock,  19  N.  Y.  581. 


3844  DISMISSAL  OR  WITHDRAWAL  OF  APPEAL.  §  27Y0 


Grounds  for  Dismissal. 


Failure  to  make,  serve,  or  file  case.     There  are  numer- 


ous expressions  in  the  opinions  which  would  indicate  that  an 
8ppeal  to  the  appellate  division  may  be  dismissed  where 
no  case  is  made  or  where  the  case  made  is  not  filed.4-  As 
stated  in  a  preceding  volume,  the  failure  to  serve  and  file  a 
cmsc  does  not  preclude  an  appeal  on  the  judgment  roll  alone,4' 
and  hence  where  the  judgment  roll  itself  brings  up  any  mat- 
ters for  review  the  appeal  should  not  be  dismissed  because 
there  is  no  case.44  There  is  some  question,  however,  where 
the  appeal  is  from  judgment  entered  on  a  verdict,  as  distin- 
guished from  a  judgment  entered  on  a  decision  or  report, 
whether  the  appeal  should  not  be  dismissed  on  the  ground  that 
an  appeal  on  the  judgment  roll  alone  brings  nothing  up  for 
revieAV.  The  want  of  a  certificate  that  the  case  contains  all  the 
evidence  is  not  ground.45 

Failure  to  substitute  person  as  party  or  attorney.    If  a 

person  entitled  by  law  to  be  substituted  in  place  of  a  party  ap- 
peals, but  unreasonably  neglects  to  procure  an  order  of  sub- 
stitution, the  appeal  may  be  dismissed.40  So  if  either  party  to 
an  appeal  dies  before  the  appeal  is  heard,  and  an  order  sub- 
stituting another  person  in  his  place  is  not  made  within  three 
months  after  his  death,  the  appeal  may  be  dismissed.47 

The  unexcusable  laches  of  appellant  for  years  after  the 
death  of  his  attorney  to  substitute  another  is  ground  for  dis- 
missal.48 

Matters  relating  to  the  calendar.  Failure  of  the  ap- 
pellant to  notice  the  appeal  for  argument  or  place  it  on  the 
calendar  is  not  ground  for  dismissal  but  the  remedy  of  the  re- 
spondent, if  he  wishes  to  hasten  rjroceedings,  js  i0  himself 
perform  such  acts.40 

42  See  Spindler  v.  Gibson,  72  App.  Div.  150,  76  N.  Y.  Supp.  410. 

43  Volume  3,  pp.  2653  et  seq. 

a  Brush  v.  Blot,  11  App.  Div.  626,  42  N.  Y.  Supp.  761;  Raunow  v. 
Hazard,  61  Super.  Ct.  (29  J.  &  S.)  217,  19  N.  Y.  Supp.  1023. 

45  Matter  of  Chapin,  84  Hun,  490,  32  N.  Y.  Supp.  361. 

46  Code  Civ.  Proc.  §  1296.     See  ante,  §  2594. 
4i  See  ante,  §  2594. 

48  McElwain  v.  Erie  R.  Co.,  71  N.  Y.  600. 


§  2770         DISMISSAL  OR  WITHDRAWAL  OF  APPEAL.  3845 


Grounds  for  Dismissal. 


Frivolousness  of  appeal.     Before  the  Codes,  it  was  held 

that  an  appeal  would  not  be  dismissed  for  frivolousness,50 
and  now  it  would  seem  that  an  appeal  should  not  be  dismissed 
on  such  ground  except  in  a  clear  case.  In  order  to  sustain  a 
motion  in  the  court  of  appeals  to  dismiss  an  appeal  on  the 
ground  that  the  exceptions  in  the  case  are  frivolous,  the  ex- 
ceptio:is  must  be  so  obviously  frivolous  on  their  face  as  to  re- 
quire no  argument  to  demonstrate  it,  and  where  an  examina- 
tion of  the  record  discloses  a  number  of  exceptions  that  can 
only  be  disposed  of  after  argument,  the  motion  will  be  de- 
nied.51 Questions  presented  by  an  appeal  from  a  judgment, 
which  depend  upon  the  pleadings  and  proofs,  will  not  be  dis- 
posed of  upon  a  motion  to  dismiss  for  frivolousness.52 

Want    of    jurisdiction.     Want    of    jurisdiction    in    the 

lower  court  is  ground  for  dismissal,53  except  where  the  sole 
ground  of  the  objection  is  the  very  question  raised  by  the  issue. 
the  determination  of  which  the  appeal  is  brought  to  review.31 
Where  a  judgment  appealed  from  is  void  for  want  of  juris- 
diction, but  the  lack  of  jurisdiction  does  not  appear  from  the 
record  on  appeal,  the  better  practice  is  to  dismiss  the  appeal, 
remitting  the  parties  to  a  motion  in  the  court  below  to  rid 
themselves,  if  need  be,  of  the  judgment  in  that  court,  rather 
than  to  grant  a  reversal.55 

Review  unnecessary  or  ineffectual.     An  appeal  may  be 

dismissed  if  an  event  has  occurred  which  makes  a  determina- 
tion of  it  unnecessary  or  renders  it  impossible  for  the  appel- 
late court  to  grant  effectual  relief.51'  Where  a  decision  would 
be  nugatory,  the  appeal  may  be  dismissed  without  costs.57    The 

49  Nichols  v.  MacLean,  98  N.  Y.  458;  Hand  v.  Callaghan,  12  Misc.  88, 
33  N.  Y.  Supp.  176. 

BODey  v.  Walton,  2  Hill,  403;  Rogers  v.  Hosack,  5  Hill,  521. 
si  Bachrach  v.  Manhattan  R.  Co.,  154  N.  Y.  178. 

52  Hooper  v.  Beecher,  109  N.  Y.  609. 

53  So  held  in  condemnation  proceedings.    Matter  of  Thomson,  86  Hun, 
405,  33  N.  Y.  Supp.  467. 

s*  Ogdensburgh  &  L.  C.  R.  Co.  v.  Vermont  &  C.  R.  Co.,  63  N.  Y.  176. 
56  Elmira  Realty  Co.  v  Gibson,  103  App.  Div.  140,  92  N.  Y.  Supp.  913. 

56  That  moot  questions  will  not  be  reviewed,  see  post,  §  2781. 

57  Duryea,  Watts  &  Co.  v.  Rayner,  21  Misc.  536,  47  N.  Y.  Supp.  712. 


384:6  DISMISSAL  OR  WITHDRAWAL  OF  APPEAL.  §  2772 

Waiver  of  Right  to  Move. — Motion. 

termination  of  a  trial  by  jury,  before  the  appeal  from  aii  order 
denying  a  motion  to  send  the  case  to  the  equity  term  for  trial 
is  heard,  requires  a  dismissal  of  the  appeal.5S  So  the  vacation 
by  the  trial  court  of  the  judgment  appealed  from,  since  the 
taking  of  the  appeal,  is  ground.59 

§  2771.     Waiver  of  right  to  move. 

The  right  to  move  is  not  waived  by  proposing  amendments 
to  the  case ; 60  nor  by  noticing  the  case  for  argument  and  plac- 
ing it  on  the  calendar,  where  the  ground  for  dismissal  is  that 
the  judgment  is  not  appealable,61  though  the  contrary  is  the 
rule  where  the  ground  for  dismissal  is  that  the  appeal  was  not 
taken  in  time.62 

§  2772.     Motion. 

In  some  instances,  an  appeal  may  be  dismissed  on  the  hear- 
ing of  the  main  appeal  though  no  preliminary  motion  to  dis- 
miss has  been  made.  For  instance,  the  objection  that  the  judg- 
ment or  order  appealed  from  is  not  appealable  may  be  raised 
and  decided  on  the  main  appeal.63  In  other  cases,  the  objec- 
tion on  which  a  dismissal  is  sought  is  waived  if  not  raised  by 
a  motion  to  dismiss  made  before  the  hearing  of  the  appeal.61 

The  motion  to  dismiss  must  embrace  all  the  grounds  relied 
on.65 

Time   for   motion.     The  motion   to   dismiss   should  be 

made  at  the  first  opportunity  after  the  appeal  is  perfected, 
since  the  motion  may  be  denied  for  laches  in  moving.66     How- 

ss  Bennett  v.  Edison  Elec.  II.  Co.,  18  App.  Div.  410,  46  N.  Y.  Supp.  459. 

so  Duryea  v.  Fuechsel,  145  N.  Y.  654. 

eo  Knapp  v.  Brown,  11  Abb.  Pr.  (N.  S.)  118. 

6i  Stoughton  v.  Lewis,  2  How.  Pr.  (N.  S.)  331. 

62  Pearson  v.  Lovejoy,  53  Barb.  407,  35  How.  Pr.  193. 

63  McKeown  v.  Officer,  127  N.  Y.  687. 

6*  Objections  to  defects  in  the  record  must  be  urged  on  a  "motion" 
to  dismiss.     Allen  v.  Allen,  149  N.  Y.  280,  284. 

65  Ferguson  v.  Bruckman,  164  N.  Y.  481. 

66  Stevenson  v.  McNitt,  27  How.  Pr.  335.  But  delay  by  mutual  con- 
sent is  not  laches.    Hill  v.  Hermans,  59  N.  Y.  396. 


§  2772         DISMISSAL  OR  WITHDRAWAL  OF  APPEAL.  3847 


Motion. — Time,  Place,  and  Papers. 


ever,  the  motion  cannot  be  made  before  the  time  to  perfect  the 
appeal  has  expired.  For  instance,  the  motion,  where  based 
on  the  want  of  or  insufficiency  of,  the  undertaking,  is  prema- 
ture if  made  before  the  time  to  perfect  the  appeal  has  ex- 
pired.67 

Who  may  move.  The  motion  may  be  made  in  the  be- 
half of  the  appellant  or  of  respondent,  or  the  order  may  be 
granted  on  the  court's  own  motion.68  An  executor  or  admin- 
istrator appointed  in  another  state  cannot  move  for  leave  to 
withdraw  unless  he  has  taken  out  letters  in  this  slate.69  The 
motion  may  be  made  in  the  court  of  appeals,  by  an  attorney 
for  a  respondent  though  such  attorney  has  not  been  regularly 
substituted  as  the  attorney  of  record,  because  substituted  by 
an  order  of  the  court  below.70 

Court  in  which  motion  to  be  made.  A  motion  to  with- 
draw 71  or  dismiss  72  the  appeal,  must  be  made  in  the  court  to 
which  the  appeal  is  taken.  Thus  the  "special  term"  cannot 
make  an  order  declaring  an  appeal  to  the  appellate  division 
abandoned  because  of  the  failure  of  appellant  to  procure  the 
settlement  and  filing  of  a  proposed  case.73  It  is  the  province 
of  the  appellate  division  to  dismiss  appeals  taken  to  it,  and  of 
the  lower  court  to  correct  errors  in  the  appeal  papers  or  to 
extend  the  time  for  perfecting  the  papers  on  the  appeal.71 

Motion  papers.     Generally  the  motion  is  based  on  the 

record  and  on  one  or  more  affidavits  showing  the  grounds  on 
which  the  dismissal  is  sought.  On  a  motion  to  dismiss  an  ap- 
peal, a  copy  of  the  record  of  the  court  below  or  of  the  return 

67  Murray  v.  Hathaway,  26  State  Rep.  53,  7  N.  Y.  Supp.  915. 

G8  Appellant  may  move.     Lanman  v.  Lewiston  R.  Co.,  18  N.  Y.  493. 

™  Warren  v.  Eddy,  13  Abb.  Pr.  28. 

to  Squire  v.  McDonald,  138  N.  Y.  554. 

7i  Powell  v.  Schenek,  6  App.  Div.  130,  39  N.  Y.  Supp.  S77. 

72Brooker  v.  Filkins,  7  Misc.  390.  27  N.  Y.  Supp.  918.  Barnum  v. 
Seneca  County  Bank,  6  How.  Pr.  82;  Howey  v.  "Lake  Shore  &  M.  S.  R. 
Co.,  15  Misc.  526,  37  N.  Y.  Supp.  88.  Rule  applies  to  appeals  from  sur- 
rogate's court    Hynes  v.  McCreery,  2  Dem.  158. 

73  True  v.  Sibley,  61  State  Rep.  200,  29  N.  Y.  Supp.  704. 

74  Phelps  v.  Swan,  32  Super.  Ct.   (2  Sweeny)   696. 


3848  DISMISSAL  OR  WITHDRAWAL  OF  APPEAL.  §2772 


Motion. — Papers  and   Notice   of. 


to  the  appellate  court  must  be  one  of  the  motion  papers  sub- 
mitted, where  the  motion  is  based  thereon.75  If  the  applica- 
tion is  ex  parte,  the  affidavit  must  state  whether  any  previous 
application  has  been  made.70 

Notice   of   motion.     Notice    of  the   motion   should   be 

given  to  all  the  parties  interested  except  where  the  dismissal 
may  be  granted  on  filing  an  affidavit  with  the  clerk  without 
application  to  the  court.77 

If  the  motion  is  based  on  an  irregularity,  the  notice  should 
specify  the  irregularity.  The  notice  should  also  specify  the 
motion  papers,  though  it  has  been  held  that  where  the  motion 
is  made  on  the  record  the  notice  is  not  fatally  defective  be- 
cause it  omits  to  specify  on  what  papers  the  motion  will  be 
made.78 

The  notice  must  be  at  least  eight  days.79 

The  notice  should  be  served  on  the  attorney  for  the  adverse 
party.  If  he  is  dead  or  removed,  the  notice  may  be  served  as 
provided  for  by  section  1302  of  the  Code  as  to  the  service  of 
a  notice  of  appeal. so 

Form  of  notice  of  motion  to  dismiss  appeal. 

[Title  of  cause.] 
Please  take  notice  that  on  the   pleadings   and   proceedings  in  the 

above-entitled  action  [and  on  the  affidavits  of ,  a  copy  of  which 

is  herewith  served  on  you],  a  motion  will  be  made  at  the term 

of  the court,  to  be  held  at ,  on  the day  of , 

190 — ,  at  the  opening  of  the  court  or  as  soon  thereafter  as  counsel  can 
be  heard,  for  an  order  dismissing  the  appeal  from  the  judgment  [or 
"order"]  entered  in  this  action  on  the  day  of  ,  190 — ,  [if 

75  Hutchison  v.  Root,  153  N.  Y.  329. 

76  Gouraud  v.  Trust,  17  Hun,  578. 

77  Allen  v.  Allen,  149  N.  Y.  280,  284. 

78  Browne  v.  Taylor,  69  N.  Y.  627. 

7s  Hand  v.  Callaghan,  12  Misc.  88,  33  N.  Y.  Supp.  176;  Kenney  v.  Sum- 
ner, 12  Misc.  86,  33  N.  Y.  Supp.  95;  Salters  v.  Sheppard,  11  Wkly.  Dig. 
189. 

so  if  notice  cannot  be  served  on  the  attorney  for  the  adverse  party, 
it  may  be  served  on  the  party  personally  or  as  directed  by  the  judge. 
Hickox  v.  Weaver,  15  Hun,  375.     See  ante,  §  2634. 


§  2775 


DISMISSAL  OR  WITHDRAWAL  OP  APPEAL.  3849 


Hearing.— Order. — Effect. 


ground  is  irregularity,  state  nature  thereof],  and  for  such  other  or 
further  order  as  may  be  proper,  with  costs  of  this  motion. 

[Date.]         [Signature  and  office  address  of  respondent's  attorney.] 

[Address  to  attorney  for  appellant.] 

§  2773.     Hearing. 

On  a  motion  to  dismiss  an  appeal,  the  court  will  not  go  out- 
side the  record  further  than  to  see  if  there  has  been  a  waiver 
of  the  appeal.81  The  merits  will  not  be  considered.  A  motion 
to  dismiss  an  appeal  because  the  questions  involved  have  been 
decided  adversely  to  the  appellant  in  other  cases  recently  de- 
termined will  be  denied  where  the  appellant  denies  such  con- 
tention.82 

§  2774.     Order. 

An  appeal  is  hot  effectually  dismissed  until  an  appropriate 
order  has  been  made  and  entered.83  An  appeal  cannot  be 
deemed  waived  or  abandoned  because  of  want  of  prosecution, 
where  both  parties  have  slept  on  their  rights.84 

Form  of  order. 

[Title  of  cause.]  At  a term,  etc. 

On  reading  and  filing  the  notice  of  motion  and  the  affidavit  of 

[name  all  motion  papers],  with  proof  of  due  service  thereof  on  the  at- 
torney for  appellant;    and  on  motion  of  ,  attorney  for  , 

the   respondent   herein,    and    after   hearing   ,    attorney   for   the 

appellant,  and  on  reading   [name  opposing  papers]; 

It  is  ordered  that  the  appeal  taken  by  ,  from  the  judgment 

[or  "order"]  entered  herein  on  the  clay  of  ,  be  dismissed, 

with dollars  costs  of  said  appeal  to  the  respondent. 

§  2775.     Effect  of  dismissal. 

The  effect  of  a  dismissal  as  precluding  a  second  or  further 
appeal  has  been  considered.85     The  appellate  division  cannot, 

si  O'Brien  v.  Smith,  37  State  Rep.  43,  13  N.  Y.  Supp.  410. 
82  Clark  v.  Claflin,  128  N.  Y.  610. 
ss  Stewart  v.  Berge,  4  Daly,  477. 
84  Pacific  Mail  S.  S.  Co.  v.  Toel,  9  Daly,  301. 
ie  ante,  §  2528. 


3850  DISMISSAL  OR  WITHDRAWAL  OF  APPEAL.         §  2776 

Reinstatement. 

after  dismissing  an  appeal  on  the  facts  and  the  law,  vacate 
and  set  aside  the  judgment,  since  a  dismissal  deprives  it  of 
jurisdiction  over  the  judgment  or  proceedings.86 

§  2776.    Reinstatement. 

In  a  proper  case,  the  appeal  may  be  reinstated  after  its  dis- 
missal. The  motion  to  reinstate  should  be  made  promptly  as 
it  may  be  denied  for  laches  and  acquiescence.87  Where  the 
attorney  for  one  of  several  defendants  stipulated  to  with- 
draw his  appeal  under  the  misapprehension  that  he  would 
have  the  benefit  of  the  appeal  of  his  co-defendants,  and  there 
was  a  reversal  which  did  not  benefit  him,  he  was  allowed  to 
serve  his  appeal  papers  on  payment  of  the  taxable  costs  of  the 
action  to  date.88  But  when  an  appeal  to  the  court  of  appeals 
has  been  dismissed  for  failure  to  serve  papers,  and  the  remit- 
titur has  been  sent  down,  judgment  entered  thereon,  and 
execution  issued,  a  motion  will  not  be  entertained  to  reinstate 
the  appeal.89  Where  an  appeal  is  dismissed  for  want  of  a 
return,  the  appeal  will  not  be  reinstated  because  of  an  alleged 
omission  of  the  clerk,  unless  a  clear  case  of  diligence  or  some 
accident  or  unforeseen  state  of  things  is  shown,  which  pre- 
vented the  appellant  from  procuring  the  return  or  an  exten- 
sion of  time.90  A  motion  to  be  relieved  from  a  second  regular 
default  on  appeal  will  be  denied  if  the  appeal  appears  to  be 
without  merits.91 

so  Westerfield  v.  Rogers,  174  N.  Y.  230. 

st  Matter  of  Boston,  19  Wkly.  Dig.  470. 

88  Higgins  v.  Starin,  39  App.  Div.  533,  57  N.  Y.  Supp.  306. 

so  Remedy  in  such  a  case,  see  Jones  v.  Anderson,  71  N.  Y.  599. 

so  Spoore  v.  Fannan,  16  N.  Y.  620. 

aiLuft  v.  Graham,  13  Abb.  Pr.    (N.  S.)   175. 


CHAPTER  XVI. 


QUESTIONS  REVIEWED  ON  APPEAL. 

ART  I.     GENERAL   RULES. 

What  law  governs,  §  2777. 

Stipulations  as  affecting  scope  of  review,  §  2778. 

Trial  de  novo,  §  2779. 

Additional  proof. 

Amendments. 

Review  on  appeal  from  part  of  judgment  or  order,  §  2780. 

Abstract  questions,  §  2781. 

Interlocutory  determinations,  §  2782. 

Errors  not  urged  in  lower  court,  §  2783. 

Errors  not  shown  by  the  record,  §  2784. 

Harmless  error,  §  2785. 

Rulings  on  evidence. 

Charge  to  jury. 

Findings  of  court  or  referee. 

Errors  as  to  grounds  of  decision,  §  2786. 

Errors  cured  in  lower  court,  §  2787. 

Errors  affecting  respondent,  §  2788. 

Errors   affecting   co-party   not   appealing,    §    2789. 

Errors  which  appellant  is  estopped  to  allege,  §  2790. 

Presumptions,  §  2791. 

Jurisdictional  facts. 

Ground  for  granting  new  trial. 

Filing  of  decision  as  basis  for  judgment. 

Findings  of  fact. 

Where  case  does  not  contain  all  the  evidence. 

On  appeal  from  nonsuit  or  directed  verdict. 

Review  of  inconsistent  findings  of  fact,  §  2792. 
Review  on  second  or  further  appeal,  §  2793. 

ART.  II.  APPEALS  TO  COURT  OF  APPEALS. 
(A.)  QUESTIONS  OF  FACT. 

General  rule,  §  2794. 

Matters  of  discretion,  §  2795. 


3852  QUESTIONS  REVIEWED  ON  APPEAL. 

Analysis. 

(B.)  QUESTIONS  OP  LAW. 
General  rule,  §  2796. 
On  appeal  from  unanimous  affirmance,  §   2797. 

Affirmance  of  nonsuit. 

Effect  of  leave  to  appeal. 

Necessity   of  finding  by  appellate  division  that  there  is 

evidence  to  sustain  finding. 

Burden  of  showing  unanimity  of  affirmance. 

On  appeal  from  affirmance  by  divided  court,  §  2798. 

On  appeal  from  reversal  where  trial  without  a  jury,  §  2799. 

Where  reversal  is  on  the  law. 

Where  reversal  is  on  the  facts. 

. Where  reversal  is  both  on  the  law  and  the  facts. 

Where  order  does  not  state  whether  reversal  is  on  the 

law  or  the  facts. 
On  appeal  from  reversal  where  trial  was  by  jury,  §  2800. 
On  appeal  from  order  granting  a  new  trial,  §  2801. 
On  appeal  by  leave  of  court,  §  2802. 
Review   of   interlocutory   judgment   or   order  refusing   a  new 

trial,  §  2803. 
Necessity  of  exceptions,   §   2804. 
Review  of  constitutionality  of  a  statute,  §  2805. 

ART.    III.     APPEAL   TO    APPELLATE    DIVISION    FROM    TRIAL   OR 
SPECIAL   TERM. 

Review  on  appeal  from  judgment  entered  on  a  verdict,  §  2806. 

Review  on  appeal  from  final  judgment  on  trial  without  a  jury, 
§  2807. 

Scope  of  review  on  appeal  from  final  judgment  after  affirm- 
ance of  interlocutory  judgment,  §  2808. 

Review  of  discretionary  rulings,  §  2809. 

Exceptions  as  necessary  to  review  of  questions  of  law,  §  2810. 

Review  of  sufficiency  of  evidence,  §  2811. 

As  dependent  on  motion  for  nonsuit  or  directed  verdict. 

ART.  IV.  APPEALS  TO  SUPREME  COURT  FROM  AN  INFERIOR 
COURT. 

Scope  of  review  by  appellate  division,  §  2812. 
Scope  of  review  by  appellate  term  on  appeal  from  city  court  of 
New  York,  §  2813. 

ART.    V.     APPEALS     TO     APPELLATE     DIVISION     FROM     APPEL- 
LATE TERM. 

Appeal  by  leave  of  court,  §  2814. 


§  2779  QUESTIONS  REVIEWED  ON  APPEAL.  3853 


Art.  I.      General  Rules. 


ART.   I.     GENERAL    RULES. 

§  2777.     What  law  governs. 

The  review  of  the  judgment  or  order  appealed  from  is  con- 
trolled by  the  law  as  it  stood  when  the  judgment  or  order 
was  rendered.1 

§  2778.     Stipulations  as  affecting  scope  of  review. 

The  scope  of  the  review  may  be  limited  by  stipulation 2 
but  cannot  be  enlarged. 

§  2779.     Trial  de  novo. 

The  court  of  appeals  and  the  appellate  division  and  appellate 
term  of  the  supreme  court  are  limited  to  a  review  of  the  actual 
proceedings  of  the  lower  court,  except  that  where  an  appeal  is 
taken  on  the  facts  to  the  appellate  division  from  the  surro.- 
gate's  court  the  appellate  division  has  the  same  power  to  de- 
cide questions  of  fact  which  the  surrogate  had  and  may  re- 
ceive further  testimony  or  documentary  evidence  and  appoint 
a  referee.3 

Additional  proof.     New  evidence  cannot  be  heard  for 

any  purpose,  nor  can  new  affidavits  be  read  on  an  appeal  from 
an  order,4  even  though  all  the  parties  to  the  appeal  consent 
thereto,5  except  that  a  record  may  be  produced  on  the  hear- 
ing of  an  appeal  to  "sustain"  the  judgment,0  though  not  to 

i  Cole  v.  Mahoney,  67  How,  Pr.  226;  Cole  v.  Fall  Brook  Coal  Co.,  159 
N.  Y.  59. 

2  Riggs  v.  Commercial  Mut.  Ins.  Co.,  125  N.  Y.  7,  10. 

8  Code  Civ.  Proc.  §  2586. 

4  Smith  v.  Smith,  43  Super.  Ct.  (11  J.  &  S.)  140;  People  ex  rel.  Day 
v.  Bergen,  53  N.  Y.  404;  Wells,  Fargo  &  Co.  v.  Wellsville,  C.  &  P  C.  R. 
Co.,  12  App.  Div.  47,  42  N.  Y.  Supp.  225.  Affidavits  of  newly-discovered 
evidence  will  not  be  received  on  appeal.  People  ex  rel.  Dady  v. 
Thirty-First  Ward  Sup'r,  91  Hun,  206,  36  N.  Y.  348.  The  appeal  must 
be  decided  on  the  original  papers.  Cambeis  v.  McDonald,  2  State  Rep. 
129. 

s  Thompson  v.  Taylor,  13  Hun,  201. 

o  Hewett  v.  Chadwick,  8  App.  Div.  23,  40  N.  Y.  Supp.  144;   Toole  v. 


3854  QUESTIONS  REVIEWED  ON  APPEAL.  §  2779 

Art.  I.     General  Rules. — Trial  de  Novo. 

reverse  it.7  Documentary  evidence  which  proves  itself  and 
mi  which  no  question  can  arise  in  the  cause,  except  such  as  is 
apparent  on  its  face,  may  be  produced  at  the  argument  of 
the  appeal,  where  it  was  inadvertently  or  unadvisedly  omitted 
at  the  trial.8  Such  evidence  being  in  its  nature  incontrover- 
tible, it  would  be  idle  to  send  the  case  back  for  a  new  trial  for 
the  sole  purpose  of  admitting  it.;'  This  rule  does  not,  how- 
ever, authorize  independent  and  additional  evidence,  especially 
if  other  counter  evidence  might  have  been  given  had  the  ques- 
tion been  raised  at  the  trial.10  So  a  total  failure  to  prove  a 
fact  requiring  documentary  evidence,  notwithstanding  objec- 
tion at  the  trial,  cannot  be  obviated  by  producing  the  evidence 
on  the  appeal.11 

Custom  and  usage  cannot  be  proved  as  a  question  of  fact 
m  the  appellate  court.12  nor  can  the  law  of  a  foreign  state.13 

Oneida  County  Sup'rs,  13  App.  Div.  471,  37  N.  Y.  Supp.  9,  43  N.  Y. 
Supp.  1160.  Certificate  to  affidavit  of  service  made  without  the  state. 
Miller  v.  Jones,  67  Hun,  2S1,  22  N.  Y.  Supp.  86. 

i  The  rule  is  well  settled  that  record  evidence  not  in  the  return  may 
be  read  by  the  court  on  review  in  support  of  a  decision,  although  not 
to  secure  a  reversal.  People  ex  rel.  Warschauer  v.  Dalton,  159  N.  Y. 
235,  239;  Wines  v.  City  of  New  York,  70  N.  Y.  613;  Matter  of  Cooper, 
93  N.  Y.  507;  Dunham  v.  Townshend,  118  N.  Y.  281;  Atlantic  Ave.  R. 
Co.  v.  Johnson,  134  N.  Y.  375;  Day  v.  Town  of  New  Lots,  107  N.  Y.  148, 
157;  People  ex  rel.  Manhattan  R.  Co.  v.  Barker,  146  N.  Y.  N.  Y.  304. 
But  the  court  may  consider  a  copy  of  a  paper  omitted  from  the  case, 
for  the  purpose  of  supplying  defects  in  the  case  caused  by  the  neglect 
of  the  parties  to  print  it  therein.     Munoz  v.  Wilson,  111  N.  Y.  295. 

s Bank  of  Charleston  v.  Emeric,  4  Super.  Ct.  (2  Sandf.)  718;  Porter  v. 
Waring,  69  N.  Y.  250.  An  omission  in  proof  of  a  matter  of  record  may 
be  supplied  on  appeal  to  sustain  a  judgment  where  the  record  cannot 
be  answered  or  changed.  Dunford  v.  Weaver,  84  N.  Y.  445.  Rule  does 
not  apply  to  notorial  certificate  of  protest.  Brooks  v.  Higby,  11  Hun, 
235.  Does  apply  to  leases.  Catlin  v.  Grissler,  57  N.  Y.  363;  Moller  v. 
Duryee,  21  Wkly.  Dig.  459. 

9  Dunham  v.  Townshend,  118  N.  Y.  281. 

io  Hall  v.  U.  S.  Reflector  Co.,  21  Wkly.  Dig.  37. 

ii  Moser  v.  City  of  New  York,  21  Hun,  163. 

12  Marine  Nat.  Bank  v.  National  City  Bank,  59  N.  Y.  67. 

is  Hunt  v.  Johnston,  44  N.  Y.  27;  Prouty  v.  Michigan  Southern  &  N. 


§  2781  QUESTIONS  REVIEWED  ON  APPEAL  3855 


Art.  I.     General  Rules. 


Amendments.     The  power  to,  and  propriety  of  allowing 


an  amendment  of  the  pleadings  in  the  appellate  court,  will  be 
considered  in  a  following  chapter.14 

§  2780.     Review  on  appeal  from  part  of  judgment  or  order. 

Only  the  parts  of  the  judgment  or  order  which  are  appealed 
from  can  be  reviewed.15 

§  2781.    Abstract  questions. 

Abstract,  otherwise  designated  as  moot  or  academic,  ques- 
tions, ordinarily  will  not  be  reviewed  10  no  matter  how  inter- 
esting or  important  they  may  be  to  the  general  public  or  to 
the  legal  profession,17  and  notwithstanding  the  appellate  di- 
vision has  certified  such  questions  for  review.18 

The  fact  that  the  question  in  litigation  has  ceased  to  be  a 
practical  one  as  between  the  parties  does  not,  however,  pre- 
clude a  review  thereof  where  the  question  is  one  of  public 
importance  affecting  the  right  of  electors.19  Thus,  the  fact 
that  election  day  has  passed  does  not  prevent  a  review  of  the 
question  as  to  the  validity  of  an  order  striking  a  name  from 
the  registry  list,20  or  a  question  as  to  the  regularity  of  a  nom- 
ination for  public  office,  especially  where  there  is  a  conflict  in 
the  decisions  of  the  supreme  court.21 

I.  R.  Co.,  4  T.  &  C.  230;  Lawson  v.  Pinckney,  40  Super.  Ct.  (8  J.  &  S.) 
187. 

i*  See  post,  §  2824. 

isKelsey  v.  Western,  2  N.  Y.  (2  Comst.)  500;  Robertson  v.  Bullions, 
11  N.  Y.  (1  Kern)  243. 

i6  Stein  v.  Kesselgrub,  45  Misc.  652,  91  N.  Y.  Supp.  64;  National  Sav. 
Bank  v.  Slade,  17  App.  Div.  115,  44  N.  Y.  Supp.  934. 

it  Bryant  v.  Thompson,  128  N.  Y.  426. 

is  Hearst  v.  Shea,  156  N.  Y.  169;  Coatsworth  v.  Lehigh  Valley  R.  Co., 
156  N.  Y.  451. 

i3  Matter  of  Cuddeback,  3  App.  Div.  103,  39  N.  Y.  Supp.  388.  See  Mat- 
ter of  Norton,  158  N.  Y.  130,  where  election  question  was  held  not  to  be 
of  sufficient  public  importance  to  authorize  its  review  after  election. 

20  Matter  of  Gage,  141  N.  Y.  112. 

2i  Matter  of  Fairchild,  151  N.  Y.  359. 


3856  QUESTIONS  REVIEWED  ON  APPEAL.  §  2782 

Art.   l.     General   Rules. — Abstrad   Questions. 

So  the  fact  that  the  attached  property  has  been  sold  and  the 
eeeds  applied,  will  not  preclude  a  review  of  an  order  deny- 
ing a  motion  to  vacate  an  attachment,  where  the  motion  to  va- 
cate  was  made  before  the  property  was  applied  to  the  pay- 
ment of  the  judgment.22  So  a  question,  otherwise  an  abstract 
one,  will  be  reviewed  to  protect  appellant  from  a  collateral 
liability  on  an  undertaking'  given  to  procure  an  injunction.23 
An  appeal  should  not  be  dismissed  because  of  the  want  of  a 
practical  question  where  a  question  of  a  restoration  of  costs 
which  have  been  paid  is  involved,24  though  a  later  case  holds 
that  relief  from  a  judgment  for  costs,  merely,  does  not  author- 
ize a  review  of  an  abstract  question.25 

That  a  question  has  been  settled  by  the  enactment  of  a 
statute  does  not  render  it  academic  where  there  are  several 
cases  to  be  decided  under  the  law  as  it  existed  prior  to  such 
legislative  enactment.20 

§  2782.    Interlocutory  determinations. 

The  power  to  review  an  interlocutory  judgment  or  inter- 
mediate order,  on  an  appeal  from  a  final  judgment,  has  been 
considered  in  a  preceding  chapter.27  Intermediate  orders  and 
proceedings  cannot  be  reviewed  on  an  appeal  from  an  inter- 
locutory judgment,  but  an  appeal  from  an  interlocutory  judg- 
ment sustaining  a  demurrer  to  the  complaint  and  dismissing 
the  complaint  brings  up  the  question  as  to  the  sufficiency  of 
the  complaint.28 

An  appeal  from  an  order  does  not  authorize  the  review  of 
any  other  order,  no  matter  how  closely  the  two  orders  may 
be  united  or  how  interdependent  they  may  be.20     For  instance, 

22  Market  Nat.  Bank  v.  Pacific  Nat.  Bank,  30  Hun,  50. 

23  Williams  v.  Montgomery,  148  N.  Y.  519. 

24  Martin  v.  W.  J.  Johnston  Co.,  128  N.  Y.  605. 

25  Matter  of  Croker,  175  N.  Y.  158. 

26  Bush  v.  O'Brien,  164  N.  Y.  205. 

27  See  ante,  §  2631. 

2s  Keene  v.  Tribune  Ass'n,  76  Hun,  488,  27  N.  Y.  Supp.  1045. 

29  Matter  of  Com'rs  of  Central  Park,  50  N.  Y.  493;  Baltimore  &  O.  R. 


§   2783  QUESTIONS  REVIEWED  ON  APPEAL.  3857 

Art.   I.      General  Rules. — Interlocutory   Determinations. 

an  appeal  from  an  order  denying  a  motion  to  vacate  30  or  re- 
settle 31  a  previous  order  not  appealed  from  does  not  bring  np 
the  previous  order  for  review,  except  where  the  first  order  was 
granted  ex  parte ; 32  but  on  an  appeal  from  an  order  made  on 
an  order  to  show  cause,  a  review  of  all  that  was  included  in 
the  order  to  show  cause  is  proper.33 


§  2783.     Errors  not  urged  in  lower  court. 

The  rule  that  error  cannot  be  first  urged  on  appeal  is  ele- 
mentary. The  duty  of  the  appellate  court  is  to  "review"  the 
proceedings  in  the  trial  court,  and  hence  it  follows  that  ques- 
tions not  raised  below  cannot  be  raised  on  appeal.34  There 
is  an  exception  to  this  rule,  however,  in  that  an  objection  re- 
lating to  an  issue  litigated  in  the  trial  court  may  be  first  urged 
in  the  appellate  court  where  it  is  one  which  could  not  have 
been  obviated  if  it  had  been  urged  in  the  trial  court.35  It  fol- 
lows that  an  objection  to  the  jurisdiction  of  the  court  over 
the  "subject-matter"  may  be  first  urged  in  the  appellate 
court,36  as  may  the  objection  that  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action.  It  has  also 
been  held  that  in  an  action,  such  as  an  action  to  annul  a  mar- 
riage, where  the  state  has  an  interest  in  the  disposition  of  the 

Co.  v.  Arthur,  90  N.  Y.  234;   Matter  of  Bornemann,  6  App.  Div.  524,  39 
N.  Y.  Supp.  686;  Rawson  v.  Silo,  105  App.  Div.  278,  93  N.  Y.  Supp.  416. 

so  Rusk  v.  Marston,  1  Wkly.  Dig.  566. 

si  Lippincott  v.  Westray,  6  Civ.  Proc.  R.   (Browne)  74. 

32  See  Everitt  v.  Park,  88  Hun,  368,  34  N.  Y.  Supp.  827. 

33  Stanton  v.  King,  76  N.  Y.  585. 

34  Bendix  v.  Saul,  34  Misc.  774,  68  N.  Y.  Supp.  800.  This  rule  applies, 
inter  alia,  to  defenses  (Davidson  v.  Mexican  Nat.  R.  Co.,  11  App.  Div. 
28,  42  N.  Y.  Supp.  1015) ;  the  question  as  to  the  right  to  sue  (Dunham  v. 
Fitch,  48  App.  Div.  321,  62  N.  Y.  Supp.  905);  the  scope  of  the  issue 
(Moses  v.  Hatch,  21  App.  Div.  468,  47  N.  Y.  Supp.  554);  etc.  Facts  ad- 
mitted in  the  lower  court  cannot  be  denied  in  the  appellate  court.  Oster- 
mann  v.  Goldstein,  31  Misc.  501,  64  N.  Y.  Supp.  555. 

ss  Scott  v.  Morgan,  94  N.  Y.  508;  Beekman  v.  Frost,  18  Johns.  511. 

•'^Volume  1,  pp.  1090,  1091;  Worthington  v.  London  Guarantee  &  Ace. 
Co.,  47  App.  Div.  609,  62  N.  Y.  Supp.  591;  Burk  v.  Ayers,  19  Hun,  17; 
Armstrong  v.  Loveland,  99  App.  Div.  28,  90  N.  Y.  Supp.  711. 

N.  Y.  Prac—  242. 


3S58  QUESTIONS  REVIEWED  ON  APPEAL.  §  2783 

Art.  I.     General  Rules. — Error  Not  Urged  Below. 

cause,  objections  are  reviewable  though  not  urged  in  the  lower 
court.37 

Among  the  objections  which  are  frequently  held  to  be 
waived  by  a  failure  to  urge  in  the  trial  court  are  objections  to 
the  nature  or  form  of  the  remedy,38  to  nonjoinder  or  mis- 
joinder of  parties,3"  to  defects  in  the  pleadings,40  to  the  pro- 
priety of  the  amendment  of  a  pleading,41  to  a  variance  between 
the  pleadings  and  the  proof,42  to  the  admission  of  evidence,43 
to  instructions  to  the  jury  given  or  refused,44  to  a  provision 
for  costs  in  a  judgment  and  for  the  allowance  of  an  execu- 
tion/5 etc. 

A  ground  not  stated  in  a  motion  in  the  lower  court  cannot 
be  first  urged  on  appeal,  to  obtain  a  reversal,  as  a  reason  why 
the  motion  should  have  been  granted.  For  instance,  grounds 
of  a  motion  for  a  nonsuit  not  specified  in  the  trial  court  cannot 
be  first  urged  on  appeal.46  However,  the  fact  that  the  lower 
court  erroneously  grants  a  motion  on  a  certain  ground  is  not 
cause  for  a  reversal  where  the  motion  should  have  been 
granted  on  another  ground  urged  in  the  lower  court.47 

The  objection  made  in  the  lower  court,  to  be  available  on  ap- 
peal, must  be  specified.48 

A  party  who  has  acquiesced  in  the  trial  of  an  action  on  a 
certain  theory  will  not  be  heard  to  assert  for  the  first  time  on 


37  Di  Lorenzo  v.  Di  Lorenzo,  71  App.  Div.  509,  75  N.  Y.  Supp.  878. 

3s  Objection  that  there  is  an  adequate  remedy  at  law  cannot  be  first 
urged  on  appeal.  Nickerson  v.  Canton  Marble  Co.,  35  App.  Div.  Ill,,  54 
N.  Y.  Supp.  705. 

39  Campbell  v.  Hieland,  55  App.  Div.  95,  66  N.  Y.  Supp.  1116.  See 
vol.  1,  p.  1091. 

40  Thornton  v.  Moore,  41  App.  Div.  017,  5S  N.  Y.  Supp.  1150. 
4i  Miller  v.  Fiss,  21  Misc.  66,  46  N.  Y.  Supp.  967. 

42  Cahill  Iron  Works  v.  Pemberton,  48  App.  Div.  468,  62  N.  Y.  Supp.  944. 

43  Volume  2,  pp.  2264-2277. 

44  Barnes  v.  Loew,  20  App.  Div.  7,  46  N.  Y.  Supp.  901.  See  vol.  2, 
p.  2342. 

45  La  Grange  v.  Merritt,  96  App.  Div.  61,  89  N.  Y.  Supp.  32. 
40  Rawson  v.  Leggett,  97  App.  Div.  416,  90  N.  Y.  Supp.  5. 

47  See  post,  §  2786. 

48  Volume  2,  pp.  2265-2269. 


§  2784  QUESTIONS  REVIEWED  ON  APPEAL.  3859 

Art.  I.     General  Rules. — Error  Not  Urged  Below. 

appeal  that  there  was  error  in  adopting  the  theory  he  assisted 
in  establishing  as  the  law  of  the  case.40  In  other  words,  relief 
cannot  be  claimed  in  an  appellate  court  on  a  theory  not  urged, 
or  on  issues  not  raised,  on  the  trial.50  For  instance,  where  a 
plaintiff  sets  up  a  cause  of  action  ex  delicto  and  is  defeated, 
the  judgment  will  not  be  reversed  on  appeal  because  a  judg- 
ment ex  contractu  might  properly  have  been  rendered  if  such 
judgment  had  been  prayed  for  in  the  lower  court.51 

Whether  a  motion  for  a  nonsuit  or  to  direct  a  verdict  is 
necessary  to  authorize  a  review  of  the  evidence  has  been 
treated  of  in  a  preceding  volume,52  as  have  the  rules  relating 
to  the  necessity  of  moving  to  have  the  issues  submitted  to  the 
jury,  after  a  ruling  on  a  motion  for  a  nonsuit  or  for  a  directed 
verdict.53 

§  2784.     Errors  not  shown  by  the  record. 

Error  not  appearing  in  the  record  cannot  be  reviewed.54  The 
errors  relied  on  must  be  apparent  from  the  record  and  must  be 
presented  by  it.  For  instance,  the  propriety  of  a  bill  of  par- 
ticulars cannot  be  inquired  into  where  the  bill  is  not  in  the 
record.55  So  where  the  record  does  not  contain  the  pleadings, 
nor  anything  from  which  a  right  to  a  preference -on  the  cal- 
endar can  be  determined,  an  order  denying  such  preference 
cannot  be  reviewed.56  So  where  the  record  does  not  contain 
a  judgment,  a  recital  of  a  judgment  in  the  notice  of  appeal  is 

4»  Caponigri  v.  Altieri,  165  N.  Y.  255,  263.  See  cases  in  1  Abb.  Cyc. 
Dig.  516-518. 

so  Matter  of  Atwood,  3  App.  Div.  578,  38  N.  Y.  Supp.  338. 

si  Lockwood  v.  Quackenbush,  83  N.  Y.  607. 

62  Vol.  2,  p.  2301.  Of  course  the  failure  to  move  does  not  preclude  the 
right  to  insist  that  the  verdict  is  against  the  weight  of  the  evidence. 

■•■■  Vol.  2,  p.  2293. 

54  People  ex  rel.  Krulish  v.  Fornes,  175  N.  Y.  114;  Terwilliger  v. 
Wheeler,  81  App.  Div.  460,  81  N.  Y.  Supp.  173;  M.  Groh's  Sons  v.  Groh, 
80  App.  Div.  85,  80  N.  Y.  Supp.  438;  Sommer  v.  Sommer,  87  App.  Div. 
434,  88  N.  Y.  Supp.  444.    See  Code  Civ.  Proc.  §  1315,  last  clause. 

55Bolte  v.  Third  Ave.  R.  Co.,  38  App.  Div.  234,  56  N.  Y.  Supp.  1038; 
see,  also,  Handy  v.  Powers,  70  App.  Div.  618,  75  N.  Y.  Supp.  385. 

■ '•  Marando  v.  T.  A.  Gillespie  Co..  54  App.  Div.  488,  66  N.  Y.  Supp.  1027. 


3860  QUESTIONS  REVIEWED  ON  APPEAL.  §  2785 

An.    i.     General    Rules.— Error   Not   Shown    by    Record. 

not  sufficient,  as  the  court  cannol  review  a  judgment  not  be- 
fore it.67  And  where,  after  the  close  of  the  evidence,  a  motion 
was  made  for  a  nonsuil  and  to  dismiss  the  complaint,  and  the 
courl  reserved  its  decision  until  after  the  verdict,  and  on  its 
rendition  granted  the  motion  and  dismissed  the  complaint  on 
the  merits,  hut  the  record  does  not  show  the  answers  to  the 
specific  questions  submitted  to  the  jury,  the  review  is  the  same 
as  if  no  verdict  had  been  rendered.58  As  will  be  noticed  here- 
after, an  appeal  from  an  order  denying  a  new  trial  will  usually 
be  dismissed  where  the  order  does  not  state  the  grounds  of 
the  motion,59  though  it  is  held  that  where  a  motion  to  dismiss 
a  complaint  is  based  on  several  grounds,  and  the  record  does 
not  show  on  what  ground  it  was  granted,  the  order  will  be 
sustained  if  it  was  proper  on  any  of  the  grounds.'10 

It  is  held  that  an  alleged  error  appearing  in  the  opinion 
of  the  court,  but  not  elsewhere  in  the  record,  will  not  be  con- 
sidered,'"'1 though  there  .is  some  question  as  to  whether  such 
rule  is  good  law  now,  inasmuch  as  the  opinion  is  a  part  of  the 
record.  Unless  the  statute  requires  the  order  of  reversal  to 
itself  state  the  grounds  therefor,02  the  appellate  court  may  refer 
to  the  opinion  for  the  grounds  on  which  the  court  acted  where 
the  order  sp  refers.63 

§  2785.     Harmless  error. 

It  being  admitted  that  error  has  been  committed,  it  does  not 
necessarily  follow  that  the  appellate  court  must  reverse  be- 
cause thereof.     The  error  may  have  had  no  effect  on  the  result, 

57  Smith  v.  Ely,  46  Misc.  458;  92  N.  Y.  Supp.  310. 

ss  O'Sullivan  v.  Knox,  81  App.  Div.  438,  80  N.  Y.  Supp.  848. 

59  See  post,  §  2800. 

eo  Holm  v.  Empire  Hardware  Co.,  102  App.  Div.  505,  92  N.  Y.  Supp. 
914. 

ei  Laning  v.  New  York  Cent.  R.  Co.,  49  N.  Y.  521,  539.  Followed  in 
People  ex  rel  Cashman  v.  Heddon,  32  Hun,  299.  See,  also,  Rawson  v. 
Silo,  105  App.  Div.  278,  93  N.  Y.  Supp.  41G. 

62  Townsend  v.  Bell,  167  N.  Y.  462,  467. 

63  Snyder  v.  Snyder,  96  N.  Y.  88;  Tolman  v.  Syracuse,  B.  &  N.  Y.  R. 
Co.,  92  N.  Y.  353. 


§  2785  QUESTIONS  REVIEWED  ON  APPEAL.  3861 

Art.    I.      General    Rules. — Harmless   Error. 

in  which  case  it  is  termed  harmless  error.  If  the  error  is 
harmless,  the  appellate  court  disregards  it  and  will  not  reverse 
therefor.  Harmless  error  is  error  which  has  resulted  in  no 
prejudice  to  the  party  seeking  to  take  advantage  of  it.64  For 
instance,  errors  committed  against  an  appellant  who  in  no 
event  is  entitled  to  succeed  in  his  action  or  defense  are  harm- 
less. So  error  in  permitting  an  amendment  to  a  pleading  in- 
creasing the  claim  for  damages  is  harmless  where  the  recovery 
did  not  exceed  the  amount  originally  claimed. i;r> 

The  court  will  not  reverse  for  an  error  in  appellant's  favor.00 

Rulings  on  evidence.     Error  in  receiving  or  rejecting 

evidence  "in  an  action  at  law"  is  presumed  to  be  prejudicial 
and  is  to  be  disregarded  only  when  the  court  can  clearly  see 
that  no  harm  resulted  therefrom,07  i.  e.,  where  the  appellate 
court,  on  an  examination  of  the  entire  case,  is  enabled  to  de- 
termine beyond  a  reasonable  doubt  that  the  evidence  could  not 
have  been  detrimental  to  appellant.08  The  improper  admission 
of  evidence  to  prove  an  admitted  fact  is  harmless,09  as  is  the 
erroneous  admission  of  evidence  on  an  immaterial  issue,70  or 

64  Error  cured  in  trial  court,  see  post,  §  2787.  Error  too  trifling  to  re- 
quire reversal,  see  post  §  2818.  "Who  may  urge  error,  see  post,  §§  2788- 
2790. 

65  Clark  v.  Brooklyn  Heights  R.  Co.,  78  App.  Div.  478,  79  N.  Y.  Supp. 
811. 

eeCowles  v.  Watson,  14  Hun,  41;  Meltzer  v.  Doll,  91  N.  Y.  365;  Fuller 
v.  Jamestown  St.  R.  Co.,  75  Hun,  273,  26  N.  Y.  Supp.  1078.  Error  in  ad- 
mitting evidence.  Becker  v.  Laitin,  23  Misc.  756,  50  N.  Y.  Supp.  635. 
Error  in  amount  of  judgment.  Desmond  v.  Crane,  39  App.  Div.  190,  57 
N.  Y.  Supp.  266.  Instructions.  Wolf  v.  Third  Ave.  R.  Co.,  67  App.  Div. 
605,  74  N.  Y.  Supp.  336. 

6T  Hall  v.  United  States  Radiator  Co.,  76  App.  Div.  504,  78  N.  Y.  Supp. 
549.  Baird  v.  Gillett,  47  N.  Y.  186.  This  rule  applies  to  the  admission 
of  evidence  which  is  merely  cumulative.  Osgood  v.  Manhattan  Co.,  3 
Cow.  612.  The  error  is  not  harmless  if  the  evidence  bears  in  the  least 
degree  on  the  result.    Worrall  v.  Parmelee,  1  N.  Y.  519. 

es  Bennett  v.  Donovan,  83  App.  Div.  95,  82  N.  Y.  Supp.  506. 

«e  Pescia  v.  Societa  Co-Op.  C.  F.  B.,  91  App.  Div.  506,  86  N.  Y.  Supp. 
952. 

to  B.  H.  Ogden  Lumber  Co.  v.  Busse,  92  App.  Div.  143,  86  N.  Y.  Supp. 
109S;  Sweet  v.  Henry,  175  N.  Y.  268. 


3S62  QUESTIONS  REVIEWED  ON  APPEAL.  §  27S5 

An.    I.      General    Rules. — Harmless   Error. 

where  the  only  point  on  which  it  bears  is  abundantly  proven 
by  competent  evidence.71  Error  in  admitting  evidence  is 
harmless  where  it  is  plain  that  it  was  not  regarded  by  the 
jury  in  arriving  at  their  verdict,72  or  was  not  given  effect  by 
the  judge  or  referee  where  the  trial  was  without  a  jury.73  So 
where  certain  evidence  has  been  admitted  without  objection, 
the  subsequent  admission  of  substantially  similar  evidence  is 
harmless.74  The  admission  of  immaterial  evidence  which  is  of 
no  weight  and  could  have  no  effect  on  the  jury  is  harmless, 
but  the  rule  is  otherwise  where  the  evidence  has  a  tendency  to 
excite  the  passions,  arouse  the  prejudices,  awaken  the  sym- 
pathies, or  warp  or  influence  the  judgment  of  the  jurors  in 
any  degree.75  So  the  erroneous  admission  of  evidence  is  harm- 
less, though  it  is  made  the  basis  of  a  finding,  where  the  finding 
is  unnecessary  to  support  the  judgment.76  The  erroneous  ad- 
mission of  evidence  on  the  question  of  damages  is  harmless 
where  the  court  has  properly  held  that  plaintiff  is  not  entitled 
to  recover.77  But  error  in  admitting  evidence  cannot  be  said 
to  be  harmless  where  the  party  objecting  to  it  is  obliged  to  call 
a  witness  to  explain  or  contradict  it.78 

The  exclusion  of  evidence  which  could  not  have  affected  the 
result  is  harmless,79  but  it  must  plainly  appear  that  the  rejected 
evidence  could  not  have  legitimately  changed  the  result.80 
Error  in  excluding  evidence  which,  if  admitted,  would  have 

7i  Buckley  v.  Westchester  Lighting  Co.,  93  App.  Div.  436,  87  N.  Y. 
Supp.  763;  Chamberlain  v.  Cuming,  99  App.  Div.  561,  91  N.  Y.  Supp.  105; 
Bogue  v.  Newcomb,  1  T.  &  C.  251;  Matter  of  Bernsee,  71  Hun,  27,  24  N.  Y. 
Supp.  504. 

72  Petrie  v.  Petrie,  126  N.  Y.  683. 

"Taylor  v.  Enoch  Morgan's  Sons  Co.,  124  N.  Y.  184;  Collis  v.  Bull, 
75  Hun,  466,  27  N.  Y.  Supp.  478. 

T4  Beyer  v.  Isaacs,  104  App.  Div.  12,  93  N.  Y.  Supp.  312. 

ts  Anderson  v.  Rome,  W.  &  O.  R.  Co.,  54  N.  Y.  335,  341. 

76  Hey  v.  Collman,  78  App.  Div.  584,  79  N.  Y.  Supp.  778. 

77  Kennedy  v.  Mineola,  H.  &  F.  Traction  Co.,  178  N.  Y.  508. 

78  Anderson  v.  Rome,  W.  &  0.  R.  Co.,  54  N.  Y.  335,  342. 

79  Wheeler  v.  Ruckman,  51  N.  Y.  391;  Taylor  v.  Taylor,  74  Hun.  639, 
26  N.  Y.  Supp.  246. 

so  People  v.  Strait,  154  N.  Y.  165. 


6  2785  QUESTIONS  REVIEWED  ON  APPEAL.  3863 

Art.    I.      General   Rules. — Harmless   Error. 


entitled  the  party  to  no  more  than  nominal  damages  on  his 
counter-claim,  is  not  ground  for  reversal. S1  Striking  out  evi- 
dence, on  the  motion  of  the  party  who  introduced  it,  is  harmless 
where  it  has  in  no  way  inured  to  the  benefit  of  the  adverse 
party.82 

The  rule  prevailing  in  chancery  that  errors  in  the  admission 
or  exclusion  of  evidence  were  not  ground  for  reversal  provided 
that,  duly  considering  the  evidence  excluded  or  disregarding 
the  evidence  admitted,  the  decision  was  just  and  adequately 
supported  by  legal  evidence,  still  obtains  in  equity  suits  tried 
without  a  jury  and  in  equity  suits  where  certain  issues  are 
tried  by  a  jury.83  The  presumption  in  equity  cases  is  that  the 
error  was  harmless  while  in  common-law  cases  the  presump- 
tion is  that  it  was  prejudicial.  But  while  in  equity  cases  it 
will  be  presumed  that  the  trial  judge  disregarded  incompetent 
or.  irrelevant  evidence,  it  cannot  be  said  that  it  will  neces- 
sarily be  presumed  that  the  "rejection"  of  competent  evidence 
was  harmless  and  had  no  effect  on  the  findings  of  the  trial 
judge.84 

Charge  to  jury.     An  erroneous  charge  on  an  abstract 

question  is  harmless,85  unless  it  probably  influenced  the  ver- 
dict.86 An  instruction  is  harmless  where  it  could  not  have 
affected  the  result,87  as  where  it  relates  to  a  matter  as  to  which 

si  Lyons  v.  Smith,  36  App.  Div.  627,  55  N.  Y.  Supp.  148.  See,  also, 
post,  §  2818. 

82  Hubner  v.  Metropolitan  St.  R.  Co.,  77  App.  Div.  290,  79  N.  Y.  Supp. 
153. 

83  De  St.  Laurent  v.  Slater,  23  App.  Div.  70,  48  N.  Y.  Supp.  1103;  Shaf- 
fer v.  Martin,  25  App.  Div.  501,  49  N.  Y.  Supp.  853;  Tuerk  Hydraulic 
Power  Co.  v.  Tuerk,  92  Hun,  65,  36  N.  Y.  Supp.  384;  Brunnemer  v.  Cook 
&  Bernheimer  Co.,  89  App.  Div.  406,  409,  85  N.  Y.  Supp.  954;  Matter  of 
New  York  Cent.  &  H.  R.  R.  Co.,  90  N  Y.  342,  347;  Wyse  v.  Wyse,  155  N. 
Y.  367,  372.  These  cases  overrule  Foote  v.  Beecher,  78  N  Y.  155,  which 
holds  that  the  rule  in  equity  suits  is  the  same  as  in  legal  actions. 

s*  Ward  v.  Hoag,  78  App.  Div.  510,  79  N.  Y.  Supp.  706,  and  cases  cited. 
ssWalrod  v.  Ball,  9  Barb.  271;  Lyon  v.  Marshall,  11  Barb.  241. 

86  Willson  v.  Betts,  4  Denio,  201. 

87  Clover  v.  Greenwich  Ins.  Co.,  101  N.  Y.  277;  Alston  v.  Jones,  17 
Barb.  276. 


3864  QUESTIONS  REVIEWED  ON  APPEAL.  §  2786 

Art.    l.     General    Rules. — Harmless   Error. 

the  jury  have  found  for  the  party  objecting,*58  and  the  charge 
could  not  have  affected  the  amount  of  the  recovery.80  Errors 
in  the  charge  are  harmless  where  a  verdict  was  directed  at  the 
dose  of  the  case.'"'  An  erroneous  refusal  to  charge  as  to  the 
measure1  of  damages  is  harmless  where  no  damages  are  re- 
covered.93 Whether  error  in  one  part  of  a  charge  is  cured  by 
a  correct  statement  of  the  law  in  another  portion  of  the  charge 
depends  largely  on  the  circumstances  of  each  case.02 

Findings  of  court  or  referee.     The  refusal  of  a  judge 

or  referee,  where  the  trial  is  without  a  jury,  to  make  a  particu- 
lar finding,  is  harmless  where  the  refusal  is  not  prejudicial  to 
appellant.93  An  immaterial  finding  will  be  disregarded,  even 
if  erroneous,04  and  findings  without  evidence  to  support  them 
are  harmless  if  the  judgment  was  justified  by  the  facts  found 
on  proper  evidence.95  Inconsistent  conclusions  of  law  are  harm- 
less where  the  judgment  entered  is  in  accordance  with  the  cor- 
rect conclusions  of  law  on  the  facts  found.96 

§  2786.     Error  as  to  grounds  of  decision. 

An  appellate  court  is  not  confined  to  the  grounds  assigned 
by  the  court  below  for  its  decision  but  may  sustain  a  judgment 
on  grounds  other  than  those  assigned  by  the  lower  court.07  If 
a  ruling  or  decision  was  correct  in  fact,  it  will  not  be  reversed, 

88  Exemplary  damages.     Hoard  v.  Peck,  56  Barb.  202. 

so  Jesper  v.  Press  Pub.  Co.,  76  Hun,  64,  27  N.  Y.  Supp.  619. 

so  Griffiths  v.  Hardenbergh,  41  N.  Y.  464. 

o-l  Smith  v.  Cowan,  3  App.  Div.  230,  38  N.  Y.  Supp.  482. 

92  vol.  2,  pp.  2348,  2349. 

»3  Findings  of  fact.  Woodman  v.  Penfield,  6  N.  Y.  Supp.  803;  Morris 
v.  Wells,  26  State  Rep.  9.  7  N.  Y.  Supp.  61;  Galle  v.  Tode,  74  Hun,  542 
26  N.  Y.  Supp.  633.    Findings  of  law.     Loeb  v.  Hallman,  83  N  Y.  601. 

94  Dixon  v.  Rice,  16  Hun,  422. 

osWetmore  v.  Bruce,  118  N.  Y.  319;  London  v.  Martin,  79  Hun,  229, 
29  N.  Y.  Supp.  396. 

96  Knox  v.  Metropolitan  El.  R.  Co.,  58  Hun,  517,  12  N.  Y.  Supp.  848. 

97  Simar  v.  Canaday,  53  N.  Y.  298,  300;  People  ex  rel.  Sweet  v.  Lyman, 
157  N.  Y.  368,  387.  Where  the  appellate  division  reverses  the  lower 
court  on  a  certain  ground,  the  court  of  appeals  may  affirm  the  appel- 
late division  though  not  agreeing  with  it  as  to  the  ground  of  reversal. 
If  the  reversal  was  proper  for  any  error  of  law,  raised  by  exception,  it 
will  be  sustained.    Reed  v.  McConnell,  133  N.  Y.  425. 


8  27ST  QUESTIONS  REVIEWED  ON  APPEAL.  3865 


Art.   I.     General   Rules. 


though  it  was  based  on  an  erroneous  reason,98  except  where, 
had  the  correct  reason  been  stated,  the  unsuccessful  party 
could  have  remedied  the  defects  of  his  case,90  i.  e.,  unless  the 
erroneous  ground  has  misled  the  party  to  his  injury,100  as  where 
it  led  appellant  to  omit  evidence  which  would  have  altered  the 
ease.101  By  this  rule  must  be  answered  the  question  whether 
the  appellate  division  can  sustain  an  order  on  a  ground  not  as- 
signed by  the  trial  court  where  the  ground  assigned  by  the  trial 
court  is  wrong  and  the  ground  relied  on  to  sustain  the  order 
was  not  urged  in  the  lower  court.102  Where  a  pleading  is  de- 
murred to  on  two  grounds  and  the  demurrer  is  sustained  on 
one,  an  appeal  brings  up  both  grounds.103 

A  decision  based  on  several  grounds  will  not  be  reversed 
because  some  of  the  grounds  are  erroneous.104 

§  2787.     Errors  cured  in  lower  court. 

The  appellate  court  will  not  reverse  because  of  error  which 
was  cured  in  the  lower  court.  "Whether  error  in  receiving  evi- 
dence may  be  cured  by  subsequently  striking  it  out,103  or  by 
an  instruction  to  the  jury  to  disregard  it, 106  has  been  con- 
sidered in  a  preceding  volume.     The  erroneous   exclusion   of 

as  Starer  v.  Stern  100  App.  Div.  393,  91  N.  Y.  Supp.  821.  Wrong  rea- 
son for  rejecting  evidence.  Cooper  v.  Hill  Bros.  &  Co.,  50  App.  Div.  304, 
63  N.  Y.  Supp.  1046. 

oo  Gillespie  v.  Torrance,  17  Super.  Ct.  (4  Bosw.)  36;  Scott  v.  Pilking- 
ton,  15  Abb.  Pr.  280. 

ioo  Ward  v.  Hasbrouck,  169  N.  Y.  407,  420. 

ioi  Wisser  v.  O'Brien,  35  Super.  Co.  (3  J.  &  S.)  149. 

102  Under  Code  Civ.  Proc.  §  999,  providing  that  the  judge  presiding  at 
a  trial  by  a  jury  may  grant  a  new  trial  on  exceptions,  or  because  the 
verdict  is  for  excessive  or  insufficient  damages  or  otherwise  contrary 
to  the  evidence  or  contrary  to  law,  where  a  motion  is  made  for  a  new 
trial  on  all  the  grounds  named  in  the  statute,  and  an  order  is  made 
sustaining  the  motion  as  to  one  ground  and  denying  it  as  to  the  rest, 
the  order  cannot  be  reversed  on  appeal  if  the  moving  party  is  entitled 
to  have  the  verdict  set  aside  on  either  of  the  grounds  mentioned  in  the 
motion  and  statute.  Ross  v.  Metropolitan  St.  R.  Co.,  104  App.  Div.  378, 
93  N.  Y.  Supp.  679. 

!"■•  Donnelly  v.  West,  17  Hun,  564. 

""  Ostrander  v.  Hart  130  N.  Y.  406,  413. 

L05,  km;  volume  2,  pp.  2276,  2277. 


3866  QUESTIONS  REVIEWED  ON  APPEAL.  §  2788 


Art.    I.      Cu'iuTal    Uules. 


evidence  is  cured  where  it,  or  like  testimony,  was  afterwards 
admitted.107  The  introduction  of  similar  evidence  by  the  party 
objecting  cures  the  error  in  admitting  evidence.108  So  error 
m  admitting  documentary  evidence  without  a  proper  founda- 
tion being  laid  for  its  admission  is  cured  by  the  subsequent  re- 
ception of  sufficient  proof  for  that  purpose.109  The  admission 
of  evidence,  improper  because  not  within  the  pleadings,  may 
be  cured  by  an  amendment  of  the  pleadings.110  So  the  error 
in  the  exclusion  of  evidence  may  be  cured  by  a  subsequent 
amendment  of  the  pleadings  which  makes  the  evidence  inad- 
missible.111 Error  in  refusing  to  grant  a  nonsuit  may  be  cured 
by  evidence  afterwards  introduced  which  sustains  the  ver- 
dict.112 Whether  error  in  an  instruction  is  cured  by  another 
correct  instruction  has  been  treated  of.113  Whether  improper 
remarks  to  the  jury  are  cured  by  an  instruction  to  disregard 
them  cannot  be  determined  by  any  fixed  rule.114 

§  2788.     Errors  affecting  respondent. 

Only  the  objections  which  the  appellant  raises  can  be  con- 
sidered on  appeal,  since  a  party  who  omits  to  appeal  virtually 
assents  to  the  judgment.115  For  instance,  the  appellate  court 
cannot  offset  against  an  item  of  error  against  the  appellant  an- 
other erroneous  decision  as  to  a  larger  amount  against  the  re- 

107  Brunnemer  v.  Cook  &  Bernheimer  Co.,  89  App.  Div.  406,  85  N.  Y. 
Supp.  954;  Gregory  v.  Lindsay,  61  N  Y.  649;  Benedict  v.  Eldridge,  14 
App.  Div.  625,  43  N.  Y.  Supp.  979;  Van  Dyke  v.  Gardner,  22  Misc.  113, 
49  N.  Y.  Supp.  328;  Taft  v  Little,  78  App.  Div.  74,  79  N.  Y.  Supp.  507. 

108  Machin  v.  Lamar  Fire  Ins.  Co.,  90  N.  Y.  689;  Brayton  v.  Sherman, 
24  State  Rep.  369,  5  N.  Y.  Supp.  602. 

109  Byrnes  v.  Byrnes,  102  N.  Y.  4. 

"o  General  Elect.  Co.  v.  National  Contracting  Co.,  178  N.  Y.  369.  . 

in  Harrison  v.  Forsyth,  33  Super.  Ct.  (1  J.  &  S.)  269. 

112  Lansing  v.  Van  Alstyne,  2  Wend.  561 ;  Berg  v.  Parsons,  84  Hun, 
60,  31  N.  Y.  Supp.  1091. 

us  Volume  2,  p.  2348. 

ii4  See  vol.  2,  pp.  2209,  2302,  2307. 

us  Bell  v.  Holford,  8  Super.  Ct.  (1  Duer)  58.  See,  also  Magnus  v. 
Buffalo  R.  Co.,  24  App.  Div.  449,  48  N.  Y.  Supp.  490.  Where  respondents 
do  not  appeal  they  are  bound  by  the  findings  of  fact  made  by  the  trial 
court.     Cox  v.  Stokes,  156  N.  Y.  491. 


§  2791  QUESTIONS  REVIEWED  ON  APPEAL.  3867 


Art.  I.     General  Rules. 


spondent,  where  he  has  not  appealed  therefrom.116  But  while 
a  respondent  can  have  no  benefit  from  his  exception  to  the 
admission  of  incompetent  evidence,  he  may,  on  appeal,  insist 
that  it  be  disregarded  in  determining  whether  appellant  made 
out  a  case.117  If  plaintiff  appeals  from  a  judgment  in  his 
favor,  defendant  cannot  urge  that  the  complaint  should  have 
been  dismissed.118 

§  2789.     Errors  affecting  co-party  not  appealing. 

Error  affecting  only  a  co-party  who  does  not  appeal  is  not 
ground  for  reversal.110 

§  2790.     Errors  which  appellant  is  estopped  to  allege. 

A  party  at  whose  request  or  instigation  an  act  has  been 
done,  a  theory  adopted,  or  a  ruling  made,  cannot  thereafter  in- 
sist on  appeal  that  there  was  error  in  doing  as  he  requested.120 

§  2791.     Presumptions. 

Certain  presumptions  are  indulged  by  the  appellate  court  in 
support  of  the  judgment  or  order  appealed  from,  but  none 
ordinarily  exist  to  support  a  reversal  inasmuch  as  error  must 
affirmatively  appear.  The  burden  is  on  the  appellant  to  show 
that  the  judgment  or  order  is  erroneous,121  and  no  presump- 
tions will  be  indulged  in  in  favor  of  the  appellant.122     The 

lie  Monnet  v.  Merz,  127  N.  Y.  151. 

ii-  Winne  v.  Hills,  91  Hun,  89,  36  N.  Y.  Supp.  683. 

us  Carples  v.  New  York  &  H.  R.  Co.,  16  App.  Div.  158,  44  N.  Y.  Supp. 
670. 

no  Roberts  v.  Johnson,  58  N.  Y.  613;  Mahr  v.  Bartlett,  53  Hun,  388, 
7  N.  Y.  Supp.  143;  Wolf  v.  Horn,  12  Misc.  100,  33  N.  Y.  Supp.  173;  Ben- 
nett v.  Donovan,  83  App.  Div.  95,  82  N.  Y.  Supp.  506. 

120  Proestler  v.  Kuhn,  49  N.  Y.  654 ;  Prentice  v.  Goodrich,  1  App.  Div. 
15,  36  N.  Y.  Supp.  740;  Side  v.  Brenneman,  7  App.  Div.  273,  40  N.  Y. 
Supp.  3.    For  other  cases,  see  1  Abb.  Cyc.  Dig.  504,  505. 

i2ijuliand  v.  Watson,  43  N.  Y.  571.  One  who  claims  that  an  error 
was  committed  must  cause  it  clearly  to  appear.  Wells  v.  Garbutt,  132 
N.  Y.  430;  Bell  v.  Moran,  25  App.  Div.  461,  50  N.  Y.  Supp.  982.  Rule 
applied  to  alleged  error  in  exclusion  of  evidence.  Blum  v.  Langfeld, 
37  App.  Div.  590,  56  N.  Y.  Supp.  298. 

i22Bolen  v.  Crosby,  49  N.  Y.  183;  Heye  v.  Tilford,  2  App.  Div.  346,  37 


3868  i„U  ESTIONS  REVIEWED  ON  APPEAL.  §  2791 

Art.    I.     General    Uules. — Presumptions. 

Legal  presumption  is  that  the  judgment  or  order  appealed  from 
and  every  reasonable  intendment,  on  questions 
of  l.Hi  as  well  as  of  law,  is  to  be  made  in  support  of  the  judg- 
ment or  order  appealed  from; 124  but  errors  once  shown  to  exist 
will  not  be  presumed  harmless.1-"'  Where  an  order  strikes  out 
a  pleading  as  sham  and  frivolous,  it  will  be  presumed  on  ap- 
peal that  it  was  stricken  out  as  sham,  since  a  frivolous  answer 
cannot  be  stricken  out.1-'3  It  will  be  presumed  that  the  jury 
followed  the  instructions  of  the  court  as  to  disregarding  evi- 
dence.127 However,  the  judgment  appealed  from  will  not  be 
sustained  on  a  mere  presumption  of  law',  not  suggested  or 
passed  on  below,  where  the  evidence  would  not  sustain  a  find- 
ing in  accordance  with  it.12S  On  appeal  to  the  court  of  ap- 
peals, it  will  be  presumed  that  the  appellate  division  consid- 
ered the  merits  of  the  order  appealed  from.129 

Jurisdictional  facts.     The  existence  of  facts  necessary 

to  confer  jurisdiction  of  the  subject-matter  on  the  trial  court 
will  be  presumed,  on  appeal  from  a  judgment,  unless  the  con- 
trary affirmatively  appears  of  record,130  except  where  the  ap- 
peal is  from  a  court  of  inferior  jurisdiction. 

Ground  for  granting  new  trial.     On  an  appeal  from  an 

order  granting  a  new  trial,  without  specifying  any  grounds,  it 
will  be  presumed  that  the   order  was  granted  on  exceptions 

NT.  Y.  Supp.  751;  Northampton  Nat.  Bank  v.  Kidder,  49  Super.  Ct.  (17 
J.  &  S.)  338,  13  Abb.  N.  C.  376. 

123  Williamson  v.  Field,  2  Barb.  Ch.  2S1.  Tbis  rule  applies  equally 
well  to  au  appeal  from  a  county  court  judgment  reversing  a  justice's 
judgment.  Peck  v.  Nicbols,  18  Wkly.  Dig.  268.  It  applies  to  a  trial  by 
a  referee.     Kaphon  v.  Tucker,  35  App.  Div.  310,  55  N.  Y.  Supp.  8. 

124  Mead  v.  Bunn,  32  N.  Y.  275. 

i"  Livingston  v.  Metropolitan  El.  R.  Co.,  138  N.  Y.  76;  Greene  v. 
White,  37  N.  Y.  405;  Quinlivan  v.  Buffalo,  R.  &  P.  R.  Co.,  52  App.  Div.  1, 
64  N.  Y  Supp.  795;  Hanlon  v.  Ehricb,  80  App.  Div.  359,  SO  N.  Y.  Supp. 
692;  Baldinger  v.  Levine,  83  App.  Div.  130,  82  N.  Y.  Supp.  483. 

126  How  v.  Elwell,  57  App.  Div.  357,  67  N.  Y.  Supp.  1108. 

127  Ballard  v  Hitchcock  Mfg.  Co.,  71  Hun,  582,  24  N.  Y.  Supp.  1101. 

128  Vose  v.  Florida  R.  Co.,  50  N.  Y.  369. 
i29Traeey  v.  Altmeyer,  46  X.  Y.  598. 

130  Kent  v.  West,  33  App.  Div.  112,  125,  53  N.  Y.  Supp.  244. 


2791  QUESTIONS  REVIEWED  ON  APPEAL.  3869 


Art.   I.      General   Rules. — Presumptions. 


taken   daring   the   trial,131    especially   where   the   payment    of 
costs  is  not  imposed  as  terms  of  granting  it.132 

Filing  of  decision  as  basis  for  judgment.  If  it  is  stip- 
ulated that  the  record  contains  a  true  copy  of  the  judgment 
roll,  but  it  contains  no  decision  by  the  court,  it  will  be  pre- 
sumed that  none  was  filed  and  therefore  that  the  judgment  was 
erroneously  entered.133 

Findings  of  fact.     Where  there  is  evidence  in  the  case 

sufficient  to  sustain  the  decision  of  the  court  or  the  report  of 
a  referee,  but  a  fact  thereby  established  is  not  expressly  found, 
it  will  be  presumed  on  appeal  that  the  judge  or  referee  found 
the  fact  necessary  to  sustain  the  judgment;134  but  this  rule 
does  not  apply  where  the  judge  or  referee  expressly  refuses  to 
find  such  fact,135  nor  where  the  evidence  is  conflicting  and  the 
trial  court  has  not  been  requested  to  determine  the  fact  eithe™ 
way,136  nor  where  the  evidence  is  insufficient  to  warrant  such 
a  finding,137  nor  where  the  facts  do  not  tend  to  support  the 
special  findings.138  Where  no  case  is  made,  and  the  appeal  is 
on  the  judgment  roll  alone,  it  cannot  be  assumed,  where  the 
findings  of  fact  are  insufficient  to  uphold  the  judgment,  that 
there  was  evidence  on  the  trial  sufficient  to  justify  other  find- 
ings of  facts  which  would  support  the  conclusions  of  law.  Such 
a  presumption  is  permissible  only  where  there  is  a  case.13; 

isiBadanes  v.  Feder,  93  N.  Y.  Supp.  478. 

132  Robinson  v.  Lampel,  97  App.  Div.  198,  89  N.  Y.  Supp.  853;  Roney 
v.  Aldrich,  44  Hun,  320. 

133  Kent  v.  Common  Council  of  Binghampton,  90  App.  Div.  553,  86 
N.  Y.  Supp.  411. 

134  valentine  v.  Conner,  40  N.  Y.  248;  Oberlander  v.  Spiess,  45  N.  Y. 
175.  In  other  words,  undisputed  facts  appearing  in  the  evidence  may 
be  considered  for  the  purpose  or  upholding  the  judgment  though  not 
embraced  in  the  findings  made  by  the  court.  Dyke  v.  Spargur,  143 
N.  Y.  651;  Lennon  v.  Smith,  23  App.  Div.  293,  48  N.  Y.  Supp.  456. 
Court  can  look  into  the  evidence  for  the  purpose  of  reversing  findings 
of  fact.  Excelsior  Brick  Co.  v.  Village  of  Haverstraw,  142  N.  Y.  146; 
Ostrander  v.  Hart,  130  N.  Y.  406. 

186  Meyer  v.  Amidon,  45  N.  Y.  169. 

lie  Hollister  v.  Mott,  132  N.  Y.  18. 

137  Zeiss  v.  America  Wringer  Co.,  62  App.  Div.  463,  70  N.  Y.  Supp.  1110. 

i  -  Armstrong  v.  Du  Bois,  90  N.  Y.  95. 

139  Rochester  Lantern  Co.  v.  Stiles  &  Parker  Press  Co.,  135  N.  Y.  209, 


3870  QUESTIONS  REVIEWED  ON  APPEAL.  §  2791 

Art.  I.     General  Rules. — Presumptions. 

A  finding  in  a  special  verdict  must  be  deemed  to  be  found 
<mi  proper  and  sufficient  evidence.140 

Where  case  does  not  contain  all  the  evidence.    If  the 

case  does  not  purport  to  contain  all  the  evidence,  it  will  be 
presumed  that  there  was  sufficient  evidence  to  sustain  the 
verdict.141  or  findings  of  fact.1" 

On  appeal  from  nonsuit  or  directed  verdict.  On  an  ap- 
peal from  a  nonsuit,  it  will  be  presumed  that  plaintiff  could 
have  proved  material  facts  contained  in  his  offer  of  proof.143 
The  propriety  of  denying  a  nonsuit  must  be  determined,  on  ap- 
peal, from  all  the  evidence  and  not  merely  from  that  given 
by  plaintiff's  witnesses.144  On  appeal  from  a  dismissal  upon 
the  complaint  and  opening  of  plaintiff's  counsel,  the  facts  al- 
leged in  the  complaint  and  stated  in  the  opening,  together 
with  every  inference  that  can  fairly  be  drawn  from  them,  must 
be  assumed  to  be  true.145  So,  on  reviewing  an  order  dismiss- 
ing a  complaint  for  the  insufficiencj^  of  the  evidence,  plaintiff's 
testimony  must  be  taken  as  true,  and  must  be  given  the  benefit 
of  all  inferences  which  the  jury  might  properly  have  found  in 
plaintiff's  favor  had  the  case  been  submitted.146  So  where, 
at  the  close  of  a  trial,  both  parties  ask  for  a  directed  verdict, 
and  neither  request  the  submission  of  any  fact  to  the  jury,  all 
facts  and  inferences  necessary  to  support  the  judgment,  which 

followed  in  Ingersoll  v.  Cunningham,  95  App.  Div.  571,  88  N.  Y.  Supp. 
711.    But  see  Comer  v.  Mackey,  73  Hun,  236,  25  N.  Y.  Supp.  1023. 

"o  Wright  v.  Douglas,  7  N.  Y.  (3  Seld.)  564. 

"1  Campion  v.  Rollwagen,  43  App.  Div.  117,  59  N.  Y.  Supp.  308; 
Meislahn  v.  Irving  Nat.  Bank,  62  App.  Div.  231,  70  N.  Y.  Supp.  988. 

1*2  Volume  3,  p.  2665. 

143  O'Connor  v.  Moody  90  App.  Div.  440,  86  N.  Y.  Supp.  214. 

144  Croft  v.  Haight,  51  App.  Div.  265,  64  N.  Y.  Supp.  882. 

145  Oakeshott  v.  Smith,  104  App.  Div.  384,  93  N.  Y.  Supp.  659. 
i4GWaldron  v.  Fargo,  170  N.  Y.  130;  Taylor  v.  Commercial  Bank,  68 

App.  Div.  458,  73  N.  Y.  Supp.  924;  Bruss  v  Metropolitan  St.  R.  Co.,  66 
App.  Div.  554,  73  N.  Y.  Supp.  256;  O'Hara  v.  City  of  Brooklyn,  57  App. 
Div.  176,  68  N.  Y.  Supp.  210;  Lane  v.  Lamke,  53  App.  Div.  395,  65  N.  Y. 
Supp.  1090.  This  rule  also  applies  to  a  dismissal  by  a  referee  at  the 
close  of  plaintiff's  proof.  Steigerwald  v.  Manhattan  R.  Co.,  50  App.  Div. 
487,  64  N.  Y.  Supp.  125. 


§  2793  QUESTIONS  REVIEWED  ON  APPEAL.  3871 


Art.  I.     General  Rules. 


could  have  been  derived  from  the  facts  of  the  case,  will  be  pre- 
sumed to  have  been  found  by  the  court  in  favor  of  the  party 
for  whom  a  verdict  was  directed.147 

§  2792.     Review  of  inconsistent  findings  of  fact. 

It  is  the  duty  of  the  appellate  court  to  harmonize  the  find- 
ings, if  it  can  do  so,  and  arrive  at  the  real  intention  of  the 
court  making  them,148  but  when  it  cannot,  by  any  reasonable 
construction,  reconcile  the  findings  of  fact,  it  is  bound  to  ac- 
cept the  findings  most  favorable  to  the  appellant.140  Such  is 
the  general  rule  though  it  has  been  held  that  if  the  findings 
are  capable  of  two  constructions,  and  the  evidence  is  not  con- 
tained in  the  case,  the  appellate  court  will  adopt  the  con- 
struction.  which  will  sustain  the  judgment.150  If  facts  found 
by  the  court  or  the  referee  in  the  decision  or  report  conflict 
Avith  facts  specially  found  on  the  request  of  a  party,  the  latter 
govern  on  appeal.151 

§  2793.     Review  on  second  or  further  appeal. 

On  a  second  or  further  appeal,  the  questions  of  law  settled 
by  the  same  court  on  a  prior  appeal  in  the  same  case  will  not 
be  reviewed,152  unless  there  has  been  some  plain  mistake,  as 

147  Trimble  v.  New  York  Cent.  &  H.  R.  R.  Co.,  162  N.  Y.  84;  Adams  v. 
Roscoe  Lumber  Co.,  159  N.  Y.  176;  Raegener  v.  Hubbard,  40  App.  Div. 
359,  57  N.  Y.  Supp.  1018;  Seidenspinner  v.  Metropolitan  Life  Ins.  Co., 
70  App.  Div.  476,  74  N.  Y.  Supp.  1108;  Davis  v.  True,  89  App.  Div.  319, 
85  N.  Y.  Supp.  843;  Appel  v.  ^Etna  Life  Ins.  Co.,  86  App.  Div.  83,  83  N.  Y. 
Supp.  238. 

lis  Bennett  v.  Bates,  94  N.  Y.  354,  367,  368. 

iisBonnell  v.  Griswold,  89  N.  Y.  122;  Traders'  Nat.  Bank  v.  Parker, 
130  N.  Y.  415;  Parsons  v.  Parker,  159  N.  Y.  16;  Israel  v.  Manhattan  R. 
Co.,  158  N.  Y.  624,  631.  Of  course  a  special  finding  controls  a  general 
one.  Phelps  v.  Vicher,  50  N.  Y.  69,  72.  If  findings  contained  in  the  case, 
as  settled  by  a  referee,  conflict  with  those  contained  in  his  report,  the 
former  will  be  deemed  correct.     Schwinger  v.  Raymond,  83  N.  Y.  192. 

iso  Drake  v.  Village  of  Port  Richmond,  1  App.  Div.  243,  37  N.  Y.  Supp. 
191. 

i5i  Sisson  v.  Cummings,  35  Hun,  22. 

152  Todd  v.  Union  Dime  Sav.  Inst.  128  N.  Y.  636;  Cluff  v.  Day,  141  N. 


QUESTIONS  REVIEWED  ON  APPEAL.  g  2794 

Art.    [I.     Appeals   in   Court  of  Appeals. — A.  Questions  of  Fact. 

in  overlooking  some  statutory  provision  or  some  controlling 
decision,  such  as  would  require  the  court  to  grant  a  reargu- 
menl 

Where  the  same  state  of  Cads  is  presented  on  a  second  as  on 

the  first  appeal,  the  appellate  court  will  not  review  the  grounds 
of  the  former  decision  to  pass  ou  a  question  then  in  the  case 
but  to  which  attention  was  not  called  by  counsel.154 


ART.  II.  APPEALS  TO  THE  COURT  OF  APPEALS. 
A.  QUESTIONS  OF  FACT. 

§  2794.     General  rule. 

Only  questions  of  law  are  reviewable  by  the  court  of  appeals. 
The  Constitution  so  provides,155  as  does  the  Code.156  '  The  Code 
further  provides  that  "an  appeal  to  the  court  of  appeals  from 
a  final  judgment,  or  from  an  order  granting  or  refusing  a  new 
trial  in  an  action,  where  the  appellant  stipulates  that  upon 
affirmance  judgment  absolute  shall  be  rendered  against  him, 
brings  up  for  review  in  that  court  only  questions  of  law."157 

Y.  580;  Mygatt  v.  Coe,  142  N.  Y.  78;  Buell  v  Village  of  Lockport,  8  N.  Y. 
(4  Seld.)  55;  Stegman  v.  Hollingsworth,  6  App.  Div.  609,  39  N.  Y.  Supp. 
1132;  Hart  v.  Thompson,  39  App.  Div.  668,  57  N.  Y.  Supp.  334.  This 
rule  applies  though  the  former  decision  was  not  unanimous  and  the 
reasoning  of  those  who  concurred  was  not  in  harmony.  Oakley  v.  As- 
pinwall,  13  N.  Y.  (3  Kern.)  500.  The  rule  applies  though  the  former 
appeal  was  decided  in  another  department  of  the  appellate  division. 
Feldman  v.  McGraw,  14  App.  Div.  631,  43  N.  Y.  Supp.  885;  Stokes  v. 
Hyde,  24  App.  Div.  624,  48  N.  Y.  Supp.  717.  Where  the  court  of  appeals 
writes  no  opinion,  it  is  to  be  assumed  that  it  has  approved  of  the  opin- 
ion of  the  court  below  on  every  question  necessary  to  a  decision  of  the 
case.  Sullivan  v.  New  York  El.  R.  Co.,  14  Misc.  426,  36  N.  Y.  Supp.  16. 
Law  laid  down  on  appeal  from  order,  though  not  res  ad  judicata  on  an 
appeal  from  another  order  in  the  case,  will  usually  be  followed  where 
the  facts  are  the  same.  Stine  v.  Greene,  65  App.  Div.  221,  72  N.  Y. 
Supp.  729. 

is3  Eaton  v.  Alger,  47  N.  Y.  345. 

i-t.Joslin  v.  Cowe,  56  N.  Y.  626. 

155  Const,  art.  6,  §  9. 

ise  Code  Civ.  Proc.  §  191,  subd.  3. 

157  code  Civ.  Proc.  §  1337. 


§  2795  QUESTIONS  REVIEWED  ON  APPEAL.  3873 

Art.   II.     Appeals  to   Court  of  Appeals. — A.   Questions   of  Fact. 

§  2795.    Matters  of  discretion. 

Portions  of  a  judgment,  orders,  or  rulings  on  the  trial,  which 
may  rest  in  discretion,  are  not  reviewable  by  the  court  of  ap- 
peals,158 unless  there  is  a  refusal  to  exercise  discretion  on  the 
ground  of  want  of  power,150  or  there  is  an  exercise  of  discre- 
tion without  power,  as  where  the  appellate  division  reverses 
the  order  on  the  ground  of  want  of  power  of  the  trial  court  to 
exercise  the  discretion.100  In  short,  only  the  "power"  to 
grant  a  discretionary  order  is  reviewable  by  the  court  of  ap- 
peals ; 161  for  instance,  an  allowance  of  costs,  where  discretion- 
ary and  not  in  excess  of  the  limitations  provided  by  statute, 
is  not  reviewable,102  as  where  the  appellate  division  modified  a 
judgment  by  making  it  with,  instead  of  without,  costs,  in  an 
equity  action.163  So  a  judgment  granting  a  divorce,  in  so  far 
as  it  awards  the  custody  of  the  children,  is  discretionary,  so 
that  where  the  court  does  not  exceed  its  powers,  that  portion 
of  the  judgment  cannot  be  reviewed  in  the  court  of  appeals.104 
An  order  of  the  appellate  division  refusing  a  writ,  which  order 
does  not  state  the  ground  of  decision,  cannot  be  reversed 
where  the  writ  may  have  been  refused  as  a  matter  of  discre- 
tion.105 An  order  of  the  appellate  division  simply  dismissing 
a  common-law  writ  of  certiorari,  without  affirming  the  pro- 

158  Matter  of  Attorney-General,  155  N.  Y.  441.  Discretion  of  appellate 
division  cannot  be  reviewed.  Merriam  v.  Wood  &  Parker  Lith.  Co., 
155  N.  Y.  136.  Discretion  in  issuing  or  refusing  an  injunction  is  not 
unlimited  as  facts  may  be  proved  which  will  raise  a  question  of  law  re- 
viewable by  the  court  of  appeals.  Penrhyn  Slate  Co.  v.  Granville  Elec- 
tric Light  &  Power  Co.,  181  N.  Y.  80. 

isn  Laning  v.  New  York  Cent.  R.  Co.,  49  N.  Y.  521;  Tilton  v.  Beecher, 
59  N.  Y.  176;  Marvin  v.  Marvin,  78  N.  Y.  541;  Cashman  v.  Reynolds,  25 
Abb.  N.  C.  392. 

leo  Russell  v.  Randall,  123  N.  Y.  436;  Birge  v.  Berlin  Iron  Bridge  Co., 
133  N.  Y.  477. 

iei  Standard  Trust  Co.  v.  New  York  Cent.  &  H.  R.  R.  Co.,  178  N.  Y. 
407. 

"-Allen  v.  Stevens,  161  N.  Y.  122,  149. 

163  Husted  v.  Van  Ness,  158  N.  Y.  104,  108. 

164  Osterhoudt  v.  Osterhoudt,  168  N.  Y.  358. 

165  People  ex  rel.  Durant  Land  Imp.  Co.  v.  Jeroloman,  139  N.  Y.  14, 
18,  followed  in  People  ex  rel.  Jacobus  v.  Van  Wyck,  157  N.  Y.  495. 

N.  Y.  Prac— 243. 


£874  QUESTIONS  REVIEWED  ON  APPEAL.  §  2796 

Art.  II.     Appeals  to  Court  of  Appeals. — B.   Questions  of  Law. 

ceedings  or  in  any  way  passing  on  the'  question  sought  to  be 
reviewed,  is  a  discretionary  order  not  appealable  to  the  court 
of  appeals ; 1GG  but  if  the  quashing  or  dismissal  of  the  writ  was 
for  want  of  jurisdiction  or  on  the  ground  that  the  proceed- 
ings were  found  regular,167  or  on  the  ground  that  the  relator 
had  no  authority  to  obtain  or  prosecute  the  writ,108  the  order 
is  reviewable. 

Where  the  appellate  division  allows  an  appeal  and  certifies 
a  question  of  law  for  review,  the  presumption  is  that  its  deter- 
mination was  made  on  the  merits,  unless  it  expressly  appears 
by  the  record  that  it  was  made  in  the  exercise  of  discretion.169 

What  are  discretionary  orders  and  rulings  not  reviewable 
will  not  be  further  considered  in  this  connection,  but  reference 
should  be  made  to  the  portions  of  the  particular  chapter  deal- 
ing with  the  order  or  ruling  which  it  is  sought  to  review. 


B.     QUESTIONS   OF   LAW. 

§  2796.     General  rule. 

The  general  rule  is  that  all  questions  of  law,  with  one  excep- 
tion, where  properly  preserved  for  review  by  exception  where 
an  exception  is  allowable,  are  reviewable  by  the  court  of  ap- 
peals, provided  the  question  has  been  actually  determined  by 
the  appellate  division  and  is  not  an  abstract  question.  The  ex- 
ception is  that,  where  the  appellate  division  unanimously  af- 
firms, the  court  of  appeals  cannot  consider  the  question  of  law 
whether  there  is  evidence  supporting  or  tending  to  sustain  a 
finding  of  fact  or  a  verdict  not  directed  by  the  court. 

A  refusal  of  the  judge  or  referee,  where  the  trial  is  without 
a  jury,  to  find  a  fact,  where  the  evidence  in  support  of  it  is  un- 
■controverted,  would  seem,  where  excepted  to,  to  raise  a  ques- 

166  People  ex  rel.  Coler  v.  Lord,  157  N.  Y.  408. 

167  People  ex  rel.  O'Conner  v.  Queens  County  Sup'rs,  153  N.  Y.  370, 
374. 

168  People  ex  rel.  Forest  Commission  v.  Campbell,  152  N.  Y.  51. 

169  Matter  of  Davies,  168  N.  Y.  89,  96. 


§  2797  QUESTIONS  REVIEWED  ON  APPEAL.  3875 

Art.  II.     Appeals  to  Court  of  Appeals. — B.   Questions  of  Law. 

tion  of  law,  reviewable  by  the  court  of  appeals  if  the  judgment 
is  not  "unanimously"   affirmed  by  the   appellate   division.170 

§  2797.     On  appeal  from  unanimous  affirmance. 

The  Constitution  provides  that  "No  unanimous  decision  of 
the  appellate  division  of  the  supreme  court  that  there  is  evi- 
dence supporting  or  tending  to  sustain  a  finding  of  fact  or  a  ver- 
dict not  directed  by  the  court  shall  be  reviewed  by  the  court 
of  appeals."171  This  provision  is  repeated  in  its  identical 
language  in  the  Code.172  What  constitutes  a  unanimous  affirm- 
ance has  already  been  considered.173 

This  rule  applies  without  regard  to  whether  the  trial  was 
by  the  court,  jury,  or  a  referee.  It  applies  to  special  pro- 
ceedings as  well  as  to  actions.174  It  also  applies,  it  would 
seem,  since  the  restoration  in  1904  of  requests  to  find,  where  a 
proposed  finding  of  fact  is  requested  and  refused  and  an  ex- 
ception taken  thereto,  so  that  whether  there  is  uncontroverted 
evidence  to  support  such  a  finding  cannot  be  reviewed  where 
there  is  a  unanimous  affirmance.  It  not  only  precludes  the 
court  of  appeals  from  reviewing  the  weight  of  the  evidence 
but  takes  away  from  its  jurisdiction  the  right  to  review  a  ques- 
tion which  is  a  question  of  law.175  The  constitution  does  not 
affect  cases  of  nonsuit,  or  directed  verdict,  or  reversal  by  the 
appellate  division,  or  cases  where  there  was  a  dissent  in  that 
court,  but  it  does  require  that  when  a  trial  court  or  jury  has 
decided  that  a  fact  is  proved  and  five  judges  in  the  appellate 
division  have  unanimously  held  that  it  was  proved,  contro- 
versy about  that  fact  will  end,  and  that  any  question  of  law 

i70  So  held  under  section  1023  of  the  Code  as  it  existed  before  its  re- 
enactment  in  1904.     Bohm  v.  Metropolitan  El.  R.  Co.,  129  N.  Y.  576. 

"l  Const,  art.  6,  §  9. 

172  Code  Civ.  Proc.  §  191,  subd.  4. 

"3  See  ante,  §  2543. 

174  people  ex  rel.  Manhattan  R.  Co.  v.  Barker,  152  N.  Y.  417,  434,  fol- 
lowed in  People  ex  rel.  Broadway  Imp.  Co.  v.  Barker,  155  N.  Y.  322. 

176  Marden  v.  Dorthy,  160  N.  Y.  39.  This  one  question  of  law  has 
been  withdrawn  from  the  cognizance  of  the  court  of  appeals,  as  well 
as  all  questions  of  fact.    Id. 


3876  QUESTIONS  REVIEWED  ON  APPEAL.  §  2797 

Art.  II.     Appeals  to  Court  of  Appeals. — B.   Questions  of  Law. 

mixed  with  that  of  fact,  shall  be  separately  raised  and  pre- 
sented in  order  to  be  reviewed  by  the  court  of  appeals.170 

A  finding  as  to  what  is  the  law  of  another  state  is  a  finding 
of  fact  not  reviewable  after  a  unanimous  affirmance.177 

The  court  of  appeals  cannot  review  the  question  whether  a 
contract  is  void  under  the  statute  of  frauds  where  the  question 
is  dependent  on  the  determination  of  a  fact  in  issue  under  the 
pleadings  which  has  been  settled  by  a  unanimous  affirmance  by 
the  appellate  division.178  So  the  court  of  appeals  cannot  look 
at  the  evidence  to  see  whether  requests  to  charge  would  logic- 
ally have  been  fatal  to  the  disposition  of  a  motion  for  a  non- 
suit or  for  direction  of  a  verdict,  if  such  a  motion  had  been 
made.179 

The  unanimous  affirmance  of  a  judgment  founded  wholly  on 
immaterial  evidence,  every  portion  of  which  was  duly  objected 
to,  will  not  prevent  the  consideration  of  questions  raised  by 
exceptions  to  the  rulings.180 

Not  only  must  the  express  findings  of  fact  by  the  trial  court 
be  taken  as  true,  and  be  neither  subtracted  from  nor  added 
to  but  also  implied  findings  181  and  facts  not  found  but  which 
are  expressly  or  impliedly  negatived  by  the  effect  of  the  unani- 
mous decision.182 

The  existence  of  facts  to  support  the  judgment  cannot  be 
inquired  into  even  when  the  decision  is  in  the  ' '  short-form, ' '  as 
authorized  prior  to  1903.183     Where  the  decision  of  the  special 

"6  Report  of  judiciary  committee  in  last  Constitutional  Convention. 
See  Reed  v.  McCord,  160  N.  Y.  330,  336. 

177  Genet  v.  Delaware  &  Hudson  Canal  Co.,  163  N.  Y.  173,  177;  Spies 
v.  National  City  Bank,  174  N.  Y.  222,  227. 

its  Lamkin  v.  Palmer,  164  N.  Y.  210. 

179  McGuire  v.  Bell  Tel.  Co.,  167  N.  Y.  208,  211. 

lso  Woods  Motor  Vehicle  Co.  v.  Brady,  181  N.  Y.  145. 

isi  Trustees  of  Amherst  College  v.  Ritch,  151  N.  Y.  321,  followed  in 
People  ex  rel.  Manhattan  R.  Co.  v.  Barker,  152  N.  Y.  417,  435. 

182  Lawrence  v.  Congregational  Church,  164  N.  Y.  115,  121.  Facts 
can  neither  be  added  to  or  taken  away  from.  Marden  v.  Dorthy,  160 
N.  Y.  39,  46;  Hilton  v.  Ernst,  161  N.  Y.  226;  Krekeler  v.  Aulbach,  169 
N.  Y.  372. 

188  Hutton  v.  Smith,  175  N.  Y.  375,  377. 


§  2797  QUESTIONS  REVIEWED  ON  APPEAL.  3877 

Art.  II.     Appeals  to  Court  of  Appeals. — B.   Questions  of  Law. 

term  is  a  "short-form"  decision  and  the  judgment  is  affirmed, 
all  the  facts  warranted  by  the  evidence  and  necessary  to  sup- 
port the  judgments  below  are  presumed  to  have  been  found.181 

Affirmance  of  nonsuit.     If  the  trial  court  finds  the  facts 

established  by  the  evidence  in  favor  of  the  defendant,  and  on 
such  findings  dismisses  the  complaint  on  the  merits,  no  review 
can  be  had  after  a  unanimous  affirmance,  but  if  the  trial  results 
in  a  nonsuit,  a  unanimous  affirmance  does  not  preclude  a  re- 
view to  ascertain  if  there  is  any  evidence  supporting  the  cause 
of  action,185  provided  the  ruling  was  excepted  to  in  the  lower 
court. 

Effect  of  leave  to  appeal.     The  right  to  review  this 

question  as  to  the  existence  of  any  evidence  to  support  the 
verdict  or  findings  cannot  be  conferred  by  the  granting  of 
leave  to  appeal.186 

Necessity  of  finding  by  appellate  division  that  there  is 

evidence  to  sustain  finding.  A  unanimous  affirmance  of  the 
judgment  or  order  appealed  from  necessarily  affirms  all  the 
findings  of  fact  essential  to  support  the  decision  made  below, 
the  same  as  the  affirmance  of  a  general  verdict,  and  hence  it 
is  unnecessary,  in  such  a  case,  to  specify  what  particular  find- 
ings of  fact  are  sustained  by  evidence.187 

Burden  of  showing  unanimity  of  affirmance.     If  it  does 

not  appear  that  the  affirmance  was  unanimous,  it  will  be  as- 
sumed that  it  was  not  unanimous.188  The  burden  of  showing 
that  the  affirmance  by  the  appellate  division  was  unanimous 
is  on  the  party  alleging  the  fact,  and  the  fact  must  be  shown 

184  Amherst  College  v.  Ritch,  151  N.  Y.  282,  320;  City  of  Niagara 
Falls  v.  New  York  Cent.  &  H.  R.  R.  Co.,  168  N.  Y.  610. 

iss  ware  v.  Dos  Passos,  162  N.  Y.  281,  282;  Jones  v.  Reilly,  174  N.  Y. 
97,  104.  But  see  Gzuchy  v.  Hillside  Coal  &  Iron  Co.,  150  N.  Y.  219. 
What  constitutes  a  nonsuit,  see  Deeley  v.  Hintz,  169  N.  Y.  129.  Linden- 
thai  v.  Germania  Life  Ins.  Co.,  174  N.  Y.  76;  Veazey  v.  Allen,  173  N.  Y. 
359,  367. 

186  See  ante,  §  2620;  Reed  v.  McCord,  160  N.  Y.  330;  Caponigri  v. 
Altieri,  164  N.  Y.  476. 

187  People  ex  rel.  Manhattan  R.  Co.  v.  Barker,  152  N.  Y.  417,  438. 

188  Perez  v.  Sandrowitz,  180  N.  Y.  397. 


3878  QUESTIONS  REVIEWED  ON  APPEAL.  §  27(.»9 

Art.  II.     Appeals  to  Court  of  Appeals. — B.   Questions  of  Law. 

either  by  an  express  statement  of  the  appellate  division  or  by 
a  certificate  of  that  court  appearing  in  the  record.180 


§  2798.     On  appeal  from  affirmance  by  divided  court. 

Where  the  justices  of  the  appellate  division  from  which  an 
appeal  is  taken  are  divided  on  the  question  as  to  whether  there 
is  evidence  supporting,  or  tending  to  support,  a  finding  or 
verdict  not  directed  by  the  court,  such  question  is  presented 
for  review  by  the  court  of  appeals.190  Findings  of  fact,  though 
the  affirmance  is  not  unanimous,  will  not,  however,  be  dis- 
turbed  unless   wholly   without   evidence   to   support   them.191 

§  2799.     On  appeal  from  reversal  where  trial  without  a  jury. 

The  question  as  to  the  scope  of  the  review  where  the  ap- 
peal is  from  the  order  granting  a  new  trial,  on  a  reversal  of 
the  judgment,192  or  from  a  judgment  of  reversal  where  no  new 
trial  is  granted,  depends  on  whether  the  reversal  is  on  the 
law  or  on  the  facts. 

Where  reversal  is  on  the  law.     The  court  of  appeals  has 

recently  held  that  where  a  judgment  is  reversed  for  error  of 
law  there  are  only  three  questions  which  the  court  of  appeals 
can  consider;  i.  e.,  (1)  error  in  receiving  or  rejecting  evidence, 
(2)  whether  the  conclusions  of  law  are  supported  by  the  facts 
found,  and  (3)  whether  any  material  finding  of  fact  is  without 
any  evidence  to  support  it.193  Since  the  decision  in  such  case, 
the  Code  provision  authorizing  requests  to  find  was  re-enacted 
in  1904,  and  it  is  submitted  that  now,  where  the  appellate  di- 
vision reverses  on  the  law,  the  court  of  appeals  may,  in  addi- 
tion, consider  the  court's  refusal  to  grant  a  request  to  find  a 

is9  Laidlaw  v.  Sage,  158  N.  Y.  73,  86. 
loo  Code  Civ.  Proc.  §  1337. 

iM  People  ex  rel.  Town  of  Colesville  v.  Delaware  &  Hudson  Co.,  177 
N.  Y.  337,  343. 

192  Though  appeal  is  from  order  granting  a  new  trial,  the  judgment  of 
reversal  must  also  be  reviewed.    Code  Civ.  Proc.  §  1318. 

193  National  Harrow  Co.  v.  Bement  &  Sons,  163  N.  Y.  505. 


8  2799                 QUESTIONS  REVIEWED  ON  APPEAL.                     3879 
Art.  II.     Appeals  to  Court  of  Appeals. — B.   Questions  of  Law. 


fact  proven  by  uncontrovertecl  evidence,  where  such  refusal 
is  duly  excepted  to.194 

A  reversal  on  the  ground  that  there  is  no  evidence  to  sustain 
a  finding  of  a  material  fact  is  a  reversal  on  a  question  of  law.195 
However,  the  appellate  division  cannot  reverse  on  the  law 
where  it  merely  decides  that  a  lien  was  waived,  where  the  trial 
court  found  as  a  fact  that  the  lien  existed,  since  a  finding  that 
the  lien  had  been  waived  is  a  reversal  on  the  facts.196 

Where  the  decision  is  a  "short-form"  one,  such  as  author- 
ized before  1903,  and  the  judgment  entered  thereon  is  reversed 
on  the  law,  all  facts  warranted  by  the  evidence  and  necessary  to 
support  the  judgment  will  be  presumed  to  have  been  found.197 
This  rule  does  not  apply,  however,  to  that  part  of  a  judgment 
dismissing  the  complaint  as  to  one  defendant,  since  as  to  that 
defendant  the  plaintiff  has  no  judgment  to  be  supported  by 
such  a  presumption.198  So  the  mere  fact  that  the  order  of  re- 
versal states  that  the  findings  of  fact  are  sustained  by  the  evi- 
dence does  not  require  the  court  of  appeals  to  presume  that 
the  referee  found  every  fact  necessary  to  support  the  judg- 
ment, where  such  fact  is  not  expressly  stated  in  the  report, 
where  the  necessary  finding  was  not  within  the  scope  of  the 
pleadings  and  the  evidence.190 

Where  the  reversal  is  on  the  facts.    A  reversal,  where 

the  trial  is  without  a  jury,  is  on  the  facts  unless  it  is  based  on 
one  of  the  following  classes  of  error : 

1.  A  material  error  in  receiving  or  rejecting  evidence. 

2.  A  failure  of  the  facts  found  to  support  the  conclusions 
of  law. 

is*  The  cases  of  National  Harrow  Co.  v.  Bement  &  Sons,  163  N.  Y. 
505,  515,  and  New  York  Cent.  &  H.  R.  R.  Co.  v.  Auburn  I.  Elec.  R.  Co., 
178  N.  Y.  75,  78,  are  not  now  the  law  in  regard  to  such  matter. 

185  Shotwell  v.  Dixon,  163  N.  Y.  43,  47. 

196  Blumenberg  Press  v.  Mutual  Mercantile  Agency,  177  N.  Y.  362. 

107  Dannhauser  v.  Wallenstein,  169  N.  Y.  199,  205;  People  v.  Adrion- 
dack  R.  Co.,  160  N.  Y.  225,  235. 

198  Deering  v.  Schreyer,  171  N.  Y.  451,  458. 

loo  The  court  of  appeals  is  not  required,  in  such  a  case,  to  presume 
that  the  referee  found  facts  against  the  evidence  or  against  the  ad- 
missions of  the  pleadings.     Rodgers  v.  Clement,  162  N.  Y.  422,  427. 


3830  QUESTIONS  REVIEWED  ON  APPEAL.  §  2799 


Art.  II.     Appeals  to  Court  of  Appeals. — B.   Questions  of  Law. 


3.  The  finding  of  a  material  fact  without  any  evidence  to 
support  it. 

4.  The  refusal  to  find,  on  request,  a  fact  established  by 
uncontroverted  evidence. 

A  judgment  cannot  be  reversed  on  the  facts  where  all  the 
facts  are  of  record  and  uncontroverted.200 

Prior  to  the  adoption  of  the  constitution  of  1895,  section  1338 
of  the  Code  authorized  the  court  of  appeals  to  review  ques- 
tions of  fact  where  the  reversal  of  the  general  term  was  based 
on  the  facts.  But  now  where  the  reversal  by  the  appellate 
division  is  stated  to  be  on  the  facts,  the  court  of  appeals  has 
jurisdiction  to  entertain  an  appeal  from  the  order  of  reversal, 
but  only  to  determine  whether  a  question  of  fact  actually  was 
presented  on  the  evidence  for  the  determination  of  the  appel- 
late division.201  In  other  words,  when  the  appellate  division 
"reverses"  on  the  "facts,"  a  "question  of  law"  arises  as  to 
whether  there  was  "any"  evidence  to  support  the  view  of  that 
court.  If  it  appears  that  there  was  any  material  and  contro- 
verted question  of  fact,  the  decision  thereof  by  the  appellate 
division  is  final,202  but  if  there  is  no  view  which  may  fairly 
be  taken  of  the  evidence  that  supports  the  reversal  by  the  ap- 
pellate division,  i.  e.,  there  is  no  question  of  fact  in  the  case, 
the  court  of  appeals  may  reverse  the  appellate  division  and 
affirm  the  judgment  of  the  lower  court.203 

Where   reversal   is   both   on   the   law   and  the   facts. 

Where  the  appellate  division  reverses  on  the  facts  as  well  as 
on  the  law,  the  court  of  appeals  must  first  examine  the  record 
to  see  if  there  was  a  material  question  of  fact  on  which  a  re- 
versal could  be  founded.  If  it  appears  that  the  facts  are  con- 
ceded and  uncontroverted  a  question  of  law  arises  which  is  re- 
viewable,204 but  if  the  court  of  appeals  finds  that  there  was  a 
material  question  of  fact  on  which  a  reversal  could  be  founded, 

200  Westerfield  v.  Rogers,  174  N.  Y.  230. 

201  Health  Dept.  of  New  York  v.  Dassori,  159  N.  Y.  245. 

202  0tten  v.  Manhattan  R.  Co.,  150  N.  Y.  395,  401;    Health  Dept.  of 
New  York  v.  Dassori,  159  N.  Y.  245. 

203  otten  v.  Manhattan  R.  Co.,  150  N.  Y.  395,  401. 

204  Griggs  v.  Day,  158  N.  Y.  1. 


§  2799  QUESTIONS  REVIEWED  ON  APPEAL.  3881 

Art.  II.     Appeals  to  Court  of  Appeals. — B.   Questions  of  Law. 

it  can  proceed  no  further  but  must  either  affirm  the  judgment 
or  dismiss  the  appeal ; 205  and  in  such  a  case,  while  it  has 
been  the  custom  to  dismiss  the  appeal,  a  late  case  holds  that 
"constant  disregard  of  our  admonitions  makes  it  necessary  to 
affirm  as  a  rule  and  dismiss  only  in  rare  instances  where  pe- 
culiar circumstances  require  that  course  in  order  to  prevent 
injustice."206 

Whether  there  is  a  question  of  fact  in  a  case  is  always  a 
question  of  law,  depending  possibly  on  a  conflict  of  evidence 
and  possibly  on  conflicting  inferences  which  may  be  drawn 
from  uncontradicted  evidence.207  Where  the  inferences  from 
the  uncontradicted  evidence  all  point  in  one  direction  so  that  a 
reasonable  mind  can  reach  but  one  conclusion,  there  is  no  ques- 
tion of  fact,  and  the  court  of  appeals  has  jurisdiction  to  review 
though  the  reversal  is  stated  to  be  "on  the  law  and  on  the 
facts. ' ' 20S  The  form  of  an  order  of  the  appellate  division  re- 
versing a  judgment  and  granting  a  new  trial  is  not  material 
with  respect  to  showing  whether  the  reversal  was  on  the  facts 
where  there  are  no  disputed  questions  of  fact.209 

The  certificate  of  the  appellate  division  that  it  has  reversed 
on  the  facts  as  well  as  on  the  law,  limits  the  scope  of  review  of 
the  court  of  appeals  though  the  opinion  of  the  appellate  di- 
vision reviews  only  questions  of  law.210 

Where  order  does  not  state  whether  reversal  is  on  the 

law   or   on  the   facts.     The   court   of  appeals,   on   an  appeal 

(1)  from  a  judgment  reversing  a  judgment  entered  on  the  re- 
port  of  a   referee   or   a   determination   in   the   trial   court,   or 

(2)  from  an  order  granting  a  new  trial  on  such  a  reversal, 
must  presume  that  the  judgment  was  not  reversed,  or  the  new 
trial  granted,  on  a  question  of  fact,  unless  the  contrary  clearly 

205  Crooks  v.  People's  Nat.  Bank,  177  N.  Y.  68;  Matter  of  Totten,  179 
N.  Y.  112;  Vollkommer  v.  Cody.  177  N.  Y.  124.  127. 

206  Crooks  v.  People's  Nat.  Bank,  177  N.  Y.  68. 

207  otten  v.  Manhattan  R.  Co.,  150  N.  Y.  395,  401. 

208  Matter  of  Totten,  179  N.  Y.  112. 

209  Buffalo  &  L.  Land  Co.  v.  Bellevue  Land  &  Imp.  Co.,  165  N.  Y. 
247,  253. 

210  Spies  v.  Lockwood,  165  N.  Y.  481. 


3882  QUESTIONS  REVIEWED  ON  APPEAL.  §  2800 

Art.  II.     Appeals  to  Court  of  Appeals. — B.   Questions  of  Law. 

appears  in  the  record  body  of  the  judgment  or  order  appealed 
from.211 

This  presumption  must  be  indulged  in  though  a  reference 
to  the  opinion  indicates  that  the  judgment  was  reversed  on 
the  facts.212  In  short,  if  the  "record"  does  not  show  that  the 
k  versal  was  wholly  or  partly  on  the  facts,  it  will  be  presumed 
to  be  on  the  law  so  that  the  same  questions  will  be  presented 
for  review  as  if  it  had  been  expressly  stated  that  the  reversal 
was  on  the  law.  The  fact  that  the  record  is  silent  as  to  the 
ground  of  reversal,  does  not,  however,  require  the  court  to  as- 
sume that  the  appellate  division  actually  decided  that  there 
was  evidence  to  support  the  findings.213 

This  Code  provision  does  not  apply  to  jury  trials,214  nor  to 
an  appeal  from  a  town  board  since  it  is  neither  a  court  nor  a 
referee,215  but  it  does  apply  to  the  review  of  an  order  of  re- 
versal in  a  special  proceeding.216 

If  there  is  a  reversal  not  stated  to  be  on  the  facts,  the  court 
of  appeals  cannot  consider  whether  plaintiff's  claim  was  barred 
by  limitations  where  there  was  no  finding  on  that  subject.217 

§  2800.     On  appeal  from  reversal  where  trial  was  by  jury. 

If  the  appeal  to  the  appellate  division  is  solely  from  the 
judgment  entered  on  a  verdict,  the  grounds  of  the  reversal 
need  not  be  stated,  since  the  reversal  must  have  been  on  the 
law  because  the  appellate  division  itself,  in  such  a  case,  cannot 
review  questions  of  fact.  If  the  appeal  is  from  the  judgment 
entered  on  a  verdict  and  also  from  an  order  denying  a  new 
trial  on  discretionary  grounds,  the  order  of  reversal  is  not  re- 
viewable in  the  court  of  appeals  unless  it  shows  that,  while  the 

2ii  Code  Civ.  Proc.  §  1338;  Parker  v.  Day,  155  N.  Y.  383;  Petrie  v. 
Hamilton  College,  158  N.  Y.  458. 

212  Hinckel  v.  Stevens,  165  N.  Y.  171;  Lannon  v.  Lynch,  160  N.  Y.  483. 

213  People  ex  rel.  Village  of  Brockport  v.  Sutphin,  166  N.  Y.  163. 
2i-i  Henavie  v.  New  York  Cent.  &  H.  R.  R.  Co.,  154  N.  Y.  278. 

215  People  ex  rel.  Village  of  Brockport  v.  Sutphin,  166  N.  Y.  163,  169. 

216  People  ex  rel.  Manhattan  R.  Co.  v.  Barker,  165  N.  Y.  305,  312. 

217  Matteson  v.  Palser,  173  N.  Y.  404,  413. 


§  2800  QUESTIONS  REVIEWED  ON  APPEAL.  3883 

Art.  II.     Appeals  to  Court  of  Appeals. — B.   Questions  of  Law. 


judgment  was  reversed,  the  order  denying  a  motion  for  a  new 
trial  was  affirmed  or  the  appeal  therefrom  was  dismissed,  or 
that  the  reversal  of  the  judgment  and  order  was  solely  on  the 
law.  Merely  stating  that  the  reversal  was  solely  on  the  law  is 
not  sufficient,  however,  without  adding  that  as  to  the  facts  the 
order  was  approved,  and  where  that  is  the  form  of  the  order 
of  reversal  the  appeal  will  be  dismissed.  In  actions  tried  by  a 
jury,  where  the  appeal  to  the  appellate  division  is  from  both 
the  judgment  and  the  order  denying  a  new  trial  and  the  order 
of  reversal  does  not  state  whether  the  reversal  was  on  the  law 
or  the  facts,  no  review  by  the  court  of  appeals  is  permissible, 
since  the  reversal  may  have  been  on  the  ground  that  the 
verdict  was  against  the  weight  of  evidence.21s  "Where  the  ap- 
pellate division  reverses,  both  on  questions  of  law  and  of  fact, 
a  judgment  entered  on  a  verdict  and  an  order  denying  a  mo- 
tion for  a  new  trial  on  exceptions  and  because  the  verdict 
was  against  the  evidence,  and  grants  a  new  trial,  there  can  be 
no  review  on  an  appeal  from  the  order  granting  a  new  trial 
unless  it  affirmatively  appears  that  the  appellate  division  has 
affirmed  the  facts,  since  an  order  granting  a  new  trial  is  ap- 
pealable to  the  court  of  appeals  as  of  right  only  when  granted 
"on  exceptions."  219     In  no  ease  tried  before  a  jury  in  which 

2isHenavie  v.  New  York  Cent.  &  H.  R.  R.  Co.,  154  N.  Y.  278;  Hoes 
v.  Edison  General  Elec.  Co.,  150  N.  Y.  87;  Schryer  v.  Fen  ton,  162  N.  Y. 
444;  People  v.  Slauson,  179  N.  Y.  586.  The  court  of  appeals  has  re- 
peatedly refused  to  entertain  jurisdiction  of  orders  of  the  appellate 
division  reversing  judgments  and  granting  new  trials  where  the  judg- 
ments have  been  entered  upon  verdicts,  and  motions  for  new  trials 
have  been  made  and  denied,  unless  the  court,  in  its  orders,  in  effect, 
certified  that  these  reversals  were  upon  the  law  only,  and  that  it  had 
examined  the  facts,  and  found  no  reason  for  interfering  with  the  ver- 
dict upon  the  ground  that  it  was  against  the  weight  of  evidence.  Can- 
avan  v.  Stuyvesant,  154  N.  Y.  84;  Henavie  v.  New  York  Cent.  &  H.  R. 
R.  Co.,.  154  N.  Y.  278;  Schoen  v.  Wagner,  156  N.  Y.  697;  Judson  v. 
Central  Vt.  R.  Co.,  158  N.  Y.  597;  Livingston  v.  City  of  Albany,  161 
N.  Y.  602;  Schryer  v.  Fenton,  162  N.  Y.  444;  Albring  v.  New  York 
Cent.  &  H.  R.  R.  Co.,  166  N.  Y.  287;  Id.,  174  N.  Y.  179;  Reich  v.  Dyer, 
180  N.  Y.  107. 

2i9,  220  Allen  v.  Corn  Exch.  Bank,  181  N.  Y.  278. 


3884  QUESTIONS  REVIEWED  ON  APPEAL.  §  2803 

Art.  II.     Appeals  to  Court  of  Appeals. — B.   Questions  of  Law. 


a  motion  for  a  new  trial  has  been  made  on  the  ground  that  the 
verdict  is  against  the  evidence  can  the  court  of  appeals  enter- 
tain an  appeal  from  the  order,  where  leave  to  appeal  has  not 
been  granted,  unless  it  affirmatively  appears  that  the  appellate 
division  has  affirmed  on  the  facts.220 

§  2801.     On  appeal  from  order  granting  a  new  trial. 

Where  a  judgment,  from  which  an  appeal  is  taken,  is  re- 
versed upon  the  appeal,  and  a  new  trial  is  granted,  an  appeal 
cannot  be  taken  from  the  judgment  of  reversal;  but  upon  an 
appeal  from  the  order  granting  a  new  trial,  taken,  as  pre- 
scribed by  law,  the  judgment  of  reversal  must  also  be  re- 
viewed.221 

§  2802.     On  appeal  by  leave  of  court. 

The  scope  of  the  review  where  the  appeal  is  by  leave  of  court, 
i.  e.,  the  question  whether  the  review  is  limited  to  the  ques- 
tions certified,  has  already  been  considered.222 

§  2803.     Review  of  interlocutory  judgment  or  order  refusing 
a  new  trial. 

As  already  noted,223  where  final  judgment  is  entered  in  the 
lower  court  after  the  appellate  division  affirms  an  interlocu- 
tory judgment  or  refuses  a  new  trial  either  on  an  original  ap- 
plication or  on  an  appeal  from  an  order,  and  an  appeal  is  taken 
to  the  court  of  appeals  directly  from  the  final  judgment 
entered,  the  appeal  brings  up  for  review  only  the  determina- 
tion of  the  appellate  division  affirming  the  interlocutory  judg- 
ment or  refusing  the  new  trial.224  If,  on  the  other  hand,  an 
appeal  is  taken  from  the  final  judgment  to  the  appellate  di- 
vision and  thence  to  the  court  of  appeals,  the  interlocutory 
judgment  or  refusal  of  a  new  trial  must  be  specified  for  .review 

-'21  Code  Civ.  Proc.  §  1318. 

222  See  ante,  §§  2541,  2620. 

223  See  ante,  §  2729. 

22*  Code  Civ.  Proc.  §  1336. 


$  2SU5  QUESTIONS  REVIEWED  ON  APPEAL.  3885 

Art.  II.     Appeals  to  Court  of  Appeals. — Questions  of  Law. 


in  the  notice  of  appeal,  if  appellant  desires  a  review  thereof, 
and  a  cross-appeal  must  be  taken  if  respondent  desires  a  re- 
view thereof.225 

§  2804.     Necessity  of  exceptions. 

The  general  rule  is  that  only  those  questions  of  law  which  are 
raised  by  exception  can  be  reviewed  in  the  court  of  appeals,226 
but  no  exception  is  necessary  to  authorize  the  review  of  a  ques- 
tion of  law  arising  on  a  verdict  where  judgment  has  been 
rendered  on  a  verdict  subject  to  the  opinion  of  the  court,227 
nor  is  an  exception  necessary  where  there  was  no  opportunity 
to  except.228  The  court  cannot  review  the  question  whether 
there  is  any  evidence  to  support  a  verdict  unless  a  motion  for 
a  nonsuit  or  to  direct  a  verdict  has  been  made  at  the  close  of 
the  trial,  and  an  exception  taken  to  the  denial  thereof.229  So 
the  question  whether  a  finding  of  fact  has  any  evidence  to  sup- 
port it  cannot  be  urged  unless  the  finding  has  been  duly  ex- 
cepted to.230  Stipulations  of  the  parties  consenting  to  a 
review,  in  the  absence  of  exceptions,  are  nugatory.231 

§  2805.    Review  of  constitutionality  of  a  statute. 

Questions  involving  the  constitutionality  of  a  law  will  not 
be  considered  unless  such  questions  are  essential  to  the  deter- 

225  Code  Civ.  Proc.  §  1350. 

22«Wangner  v.  Grimm,  169  N.  Y.  421,  427;  Alden  v.  Supreme  Tent  of 
K.  of  M.,  178  N.  Y.  535,  542;  Cooper  v.  New  York,  O.  &  W.  R.  Co.,  180 
N.  Y.  12.  Constitutional  question  held  sufficiently  preserved  for  review 
by  the  court  of  appeals  by  an  exception  to  the  decision  of  the  trial 
court.     People  ex  rel.  Bush  v.  Houghton,  182  N.  Y.  301. 

227  Code  Civ.  Proc.  §  1339. 

228  Volume  2,  p.  2344. 

229  Volume  2,  pp.  2294,  2301.  The  exception  is  waived  where  based 
on  the  denial  of  a  motion  made  at  the  close  of  plaintiff's  evidence,  if 
not  renewed  at  the  close  of  all  the  evidence.  Sigua  Iron  Co.  v.  Brown, 
171  N.  Y.  488,  506. 

230  Israel  v.  Manhattan  R.  Co.,  159  N.  Y.  624. 
23i  Briggs  v.  Waldron,  83  N.  Y.  582. 


3886  QUESTIONS  REVIEWED  ON  APPEAL.  g  2806 

Ail.    111.      Appeal  to  Appellate    Division   From  Trial  or  Special   Term. 

mination  of  the  appeal.232     Furthermore,  such  questions  can- 
not be  lirsl  urged  in  the  court  of  appeals.233 


ART.    III.     APPEAL    TO    APPELLATE    DIVISION    FROM    TRIAL    OR 
SPECIAL  TERM. 

§  2806.     Review    on    appeal    from    judgment    entered    on    a 
verdict. 

"Where  the  judgment  was  rendered  on  the  verdict  of  a  jury, 
the  appeal  may  be  taken  upon  questions  of  law."234  This 
means  that  where  the  final  judgment  is  appealed  from,  but  no 
motion  for  a  new  trial  is  made  or  the  order  is  not  appealed 
from,  only  questions  of  law  can  be  reviewed.235  The  facts 
can  be  reviewed  only  where  there  is  (1)  a  motion  for  a  new 
trial,  (2)  an  order  entered  thereon,236  (3)  the  order  states  the 
grounds  of  the  motion,237  (4)  an  appeal  is  taken  from  the  order 
or  it  is  specified  for  review  in  the  notice  of  appeal  from  the 
judgment,  and  (5)  the  case  shows  that  it  contains  all  the  evi- 
dence.238 There  are  cases,  however,  holding  that  the  absence 
of  a  certificate  that  the  case  contains  all  the  evidence  does  not 
preclude  a  review  of  questions  of  fact  where  the  trial  is  by  a 
jury,  if  a  motion  for  a  new  trial  has  been  made,  because  the 
motion  for  a  new  trial  constitutes  a  sufficient  notice  to  the  re- 
spondent of  an  intention  to  review  the  questions  of  fact,  and 

232  Matter  of  Attorney-General,  155  N.  Y.  441,  446;  Curtin  v.  Barton, 
139  N.  Y.  505. 

233  Delaney  v.  Brett,  51  N.  Y.  78. 

234  Code  Civ.  Proc.  §  1346. 

235  Rollins  v.  Sidney  B.  Bowman  Cycle  Co.,  96  App.  Div.  365,  370,  89 
N.  Y.  Supp.  289;  Alden  v.  Supreme  Tent  of  K.  of  M.,  178  N.  Y.  535; 
Schlesinger  v.  Columbian  Fire  Ins.  Co.,  37  App.  Div.  531,  56  N.  Y.  Supp. 
37. 

236  May  v.  Menton,  20  Misc.  723,  45  N.  Y.  Supp.  1047. 

237  Koehler  v.  New  York  Steam  Co.,  71  App.  Div.  222,  75  N.  Y.  Supp. 
597.  Where  a  motion  for  a  new  trial  is  based  solely  on  exceptions,  no 
disputed  question  of  fact  can  be  raised  on  the  appeal.  Metropolitan 
Nat.  Bank  v.  Sirret,  97  N.  Y.  320. 

238  See  vol.  3,  p.  2666. 


2807  QUESTIONS  REVIEWED  ON  APPEAL.  3887 


Art.  III.      Appeal  to  Appellate  Division  From  Trial  or  Special   Term. 


imposes  upon  'him  the  duty  of  adding  to  the  record  any  omitted 
fact  essential,  in  his  judgment,  to  sustain  the  ruling.239  It  is 
submitted,  however,  that  such  holdings  are  not  to  be  followed 
since  no  exception  can  be  taken  to  a  ruling  on  a  motion  for  a 
new  trial,240  and  it  is  only  where  an  exception  can  be,  and  is, 
taken,  that  the  respondent  is  called  on  to  see  that  the  evidence 
to  support  the  ruling  is  contained  in  the  case. 

It  should  be  remembered,  however,  that  the  propriety  of 
granting  or  refusing  a  nonsuit  or  a  directed  verdict  raises  a 
question  "of  law"  and  not  one  of  fact,  and  hence  such  a  ruling 
may  be  reviewed  though  the  case  does  not  contain  all  the  evi- 
dence,241 provided  the  ruling  has  been  duly  excepted  to.242 

§  2807.     Review  on  appeal  from  final  judgment  on  trial  with- 
out a  jury. 

The  Code  provides  that  where  final  judgment  is  rendered 
on  a  trial  by  a  referee  or  by  the  court  without  a  jury  "the  ap- 
peal may  be  taken  upon  questions  of  law,  or  upon  the  facts,  or 
upon  both."243  If  the  appeal  is  based  on  the  judgment  roll 
alone,  only  questions  of  law  are  brought  up  for  review.241 
Questions  of  fact  cannot  be  reviewed  unless  the  certificate  to 
the  case  or  case  and  exceptions  states  that  all  the  evidence 
given  on  the  trial  is  included ; 245  but  where  a  finding  of  fact 
is  excepted  to  on  the  ground  that  there  is  no  evidence  to  sup- 
port it,  it  is  not  necessary  that  the  case  contain  all  the  evidence 
to  authorize  a  review  of  the  exception  since  the  exception 
raises  a  question  of  law  so  as  to  put  on  respondent  the  duty 

239  Hochberger  v.  Baurn,  46  Misc.  425,  92  N.  Y.  Supp.  244. 
-•40  Jarvis  v.  Furman,  25  Hun,  391. 

24iKissam   v.    Jones,    56   Hun.    432,    10   N.   Y.    Supp.    94;    Stevens   v. 
Schroeder,  40  App.  Div.  590,  58  N.  Y.  Supp.  52. 

242  Volume  2,  p.  2294,  note  683. 

243  Code  Civ.  Proc.  §§  993,  1346.     This  section  does  not  apply  to  spe- 
cial proceedings.     Baumann  v.  Moseley,  63  Hun,  492,  18  N.  Y.  Supp. 

563. 

244  Rinnan  v.  Sullivan  County  Club,  26  App.  Div.  213,  50  N.  Y.  Supp. 
95;  Simpson  v.  Hefter,  43  Misc.  608,  88  N.  Y.  Supp.  282. 

245,  240  Volume  3,  p.  2665. 


3888  QUESTIONS  REVIEWED  ON  APPEAL.  §  2808 


Art.    111.      Appeal  to  Appellate  Division  From  Trial  or  Special   Term. 


oj  adding  by  amendment  to  the  case  any  omitted  evidence  on 
the  question.2*8  And,  it  is  submitted,  the  same  rule  applies 
where  the  court  or  referee  refuses  a  request  to  find,  based  on 
i incontroverted  evidence,  and  an  exception  is  taken  thereto, 
since  the  exception  raises  a  question  of  law  so  as  to  place  on 
respondent  the  duty  of  seeing  that  the  evidence  to  support  the 
refusal  is  contained  in  the  case. 

In  the  absence  of  a  case,  where  the  decision  is  a  short-form 
one,  it  will  be  presumed  that  the  facts  found  were  sustained  by 
the  evidence  and  also  that  there  was  evidence  to  justify  a  find- 
ing of  any  other  fact  at  issue  necessary  to  sustain  the  judg- 
ment,-47 and  the  only  question  for  review  is  whether  the  find- 
ings of  fact  justify  the  conclusions  of  law.  Where  the  decision 
is  in  the  now  abolished  short-form,  if  there  is  no  case,  the 
judgment  will  be  affirmed  though  the  grounds  specified  in  the 
decision  are  insufficient  to  warrant  the  judgment.248 

§  2808.     Scope  of  review  on  appeal  from  final  judgment  after 
affirmance  of  interlocutory  judgment. 

Where  final  judgment  is  taken  at  a  special  term  or  trial 
term,  or  pursuant  to  the  directions  of  a  referee,  after  the  affirm- 
ance of  an  interlocutory  judgment  upon  an  appeal  to  the  ap- 
pellate division,  or  after  the  refusal,  by  the  appellate  division, 
of  a  new  trial,  either  upon  an  application  made,  in  the  first  in- 
stance, at  a  term  of  the  appellate  division  or  upon  an  appeal 
from  an  order  of  the  special  term,  or  of  the  judge,  before  whom 
the  issues  or  questions  of  fact  were  tried  by  a  jury,  an  appeal 
to  the  appellate  division  from  the  final  judgment  brings  up,  for 
review,  only  the  proceedings  to  take  the  final  judgment,  or 
upon  which  the  final  judgment  was  taken,  including  the  hear- 
ing or  trial  of  the  other  issues  in  the  action,  if  any.240 

The  dismissal  of  an  appeal  from  an  interlocutory  judgment 
is  not  an  "affirmance"  within  this  Code  provision,  so  as  to 

247  Tompkins  v.  Morton  Trust  Co.,  91  App.  Div.  274,  278,  86  N.  Y. 
Supp.   520. 

2*8  Gardner  v.  New  York  Mut.  Sav.  &  Loan  Ass'n,  67  App.  Div.  141„ 
73  N.  Y.  Supp.  604. 

249  Code  Civ.  Proc.  §  1350. 


2810  QUESTIONS  REVIEWED  ON  APPEAL.  3889 


Art.  III.     Appeal  to  Appellate  Division  From  Trial  or  Special  Term. 


preclude  a  review  thereof  on  appeal  from  the  final  judgment 
where  the  notice  of  appeal  states  that  the  interlocutory  judg- 
ment is  brought  up  for  review.250 

§  2809.     Review  of  discretionary  rulings. 

Eulings  which  rest  in  the  discretion  of  the  court  at  trial  or 
special  term,  though  reviewable  by  the  appellate  division,  will 
not  be  disturbed  except  in  case  of  clear  abuse.  This  rule  is  so 
well  settled  by  a  multitude  of  authorities  that  a  reference 
thereto  is  unnecessary.251  It  has  been  held,  however,  that 
where  the  statute  vests  discretion  in  "the  supreme  court"  the 
appellate  division  may  reverse  though  the  discretion  exercised 
at  special  term  has  not  been  abused,  inasmuch  as  the  appellate 
division  is  as  much  a  part  of  the  supreme  court  in  which  the 
discretion  is  vested  as  is  the  trial  or  special  term.252 

§  2810.     Exceptions  as  necessary  to  review  of  question  of  law. 

The  necessity  of  an  exception  to  a  ruling  on  the  trial  to  au- 
thorize a  review  of  the  ruling  by  the  appellate  division  has 
already  been  considered,253  as  has  the  necessity  of  exceptions 
to  conclusions  of  law  or  findings  of  fact  in  the  decision  or  re- 
port where  the  trial  is  without  a  jury.254  AVhere  an  appeal  is 
taken  to  the  appellate  division  from  a  judgment  entered  upon 
the  report  of  a  referee  or  decision  of  the  court,  the  facts  are 
before  the  appellate  division,  and  no  exception  to  the  report 
or  decision  is  necessary  to  authorize  a  review  of  the  facts.255' 

250  McAlear  v.  Delaney,  19  Wkly.  Dig.  252. 

251  To  determine  what  matters  are  discretionary,  consult  index  under 
head  "Discretion  of  Court." 

252  Lawson  v.  Hilton,  89  App.  Div.  303,  85  N.  Y.  Supp.  863. 

253  Volume  2,  p.  2368.  Necessity  of  exceptions  to  judge's  charge,  see 
vol.  2,  pp.  2342-2344,  and  see  Wright  v.  Fleischmann,  99  App.  Div. 
547,  91  N.  Y.  Supp.  116.  Necessity  of  exception  to  ruling  on  motion  for 
directed  verdict  or  nonsuit,  see  vol.  2,  p.  2294. 

254  Volume  2,  p.  2388. 

255  Henderson  v.  Dougherty,  95  App.  Div.  346,  88  N.  Y.  Supp.  665; 
Matter  of  Mosher's  Estate,  103  App.  Div.  459,  93  N.  Y.  Supp.  123. 

N.  Y.  Prac—  244. 


3890  QUESTIONS  REVIEWED  ON  APPEAL.  §  2S11 

Art.  III.     Appeal  to  Appellate  Division  From  Trial  or  Special   Term. 

§  2811.     Review  of  sufficiency  of  evidence. 

The  rule  that  a  verdict,  or  a  finding  of  fact  by  the  court  or 
by  a  referee,  will  not  be  disturbed  as  contrary  to  the  evidence, 
where  the  evidence  is  conflicting,  except  in  cases  of  palpable 
mistake,  prejudice,  passion,  or  partiality,  or  unless  it  is  clearly 
j]  ml  strongly  against  the  preponderance  of  evidence,  is  too  well 
settled  to  require  the  citation  of  authorities.25"  This  rule  also 
applies  to  alleged  excessive  or  inadequate  damages.  What  has 
been  said  in  a  preceding  volume  as  to  when  a  verdict  will  be 
set  aside  as  against  the  weight  of  evidence,  on  a  motion  for  a 
new  trial,257  would  seem  to  be  applicable  to  appeals.  No  more 
definite  rule  can  be  laid  down  as  to  when  a  verdict  is  so  clearly 
against  the  preponderance  of  the  evidence  as  to  authorize  a 
reversal.  While  it  is  peculiarly  the  province  of  the  trial  court 
to  determine  Avhat  weight  should  be  given  to  the  testimony  of 
witnesses,  and  an  appellate  court  should  act  with  extreme  cau- 
tion in  disturbing  such  finding,  nevertheless,  where  it  is  clearly 
apparent  that  the  judgment  resulted  from  a  misapprehension 
of  the  force  and  effect  of  a  group  of  circumstances,  an  exercise 
by  the  appellate  court  of  its  well-defined  power  is  called  for.258 
A  court,  in  reviewing  evidence  upon  which  a  verdict  is  based, 
is  bound  to  exercise  its  intelligence,  and  in  doing  so  must  recog- 
nize the  existence  of  certain  facts  as  controlled  by  physical 
laws.  It  cannot  permit  the  finding  of  a  jury  to  change  such 
facts,  because  to  do  so  would,  in  effect,  destroy  the  intelligence 
of  the  court.259     Of  course,  if  the  evidence  shows  that  plaintiff 

256  The  appellate  court  will  not  be  so  reluctant  to  reverse  on  conflict- 
ing evidence  where  the  evidence  is  documentary  (Lavelle  v.  Corrignio, 
86  Hun,  135,  33  N.  Y.  Supp.  376;  Bigler  v.  Barnes,  56  N.  Y.  654),  though 
where  a  question  of  fact  arises  from  inferences  from  documentary  evi- 
dence the  appellate  division  will  not  reverse  unless  error  affirmatively 
appears.    Deuterman  v.  Gainsborg,  9  App.  Div.  151,  41  N.  Y.  Supp.  185. 

257  Volume  3,  pp.  2692-2698. 

258  Rosenbloom  v.  Cohen,  91  N.  Y.  Supp.  382. 

259  Quigley  v.  Naughton,  100  App.  Div.  476,  91  N.  Y.  Supp.  491;  Mat- 
ter of  Harriot's  Estate,  145  N.  Y.  540;  Elwood  v.  Western  Union  Tel. 
Co.,  45  N.  Y.  549;   Warner  v.  Western  Transp.  Co.,  28  Super.  Co.   (5 


§  2811  QUESTIONS  REVIEWED  ON  APPEAL.  3891 

Art.  III.     Appeal  to  Appellate  Division  From  Trial  or  Special  Term. 

should  recover  either  the  amount  sued  for  or  nothing,  a  verdict 
for  nominal  damages  should  not  be  allowed  to  stand.260 

The  principle  that  where  a  case  has  been  tried  several  times, 
and  upon  each  occasion  with  the  same  result,  the  appellate 
court  will  not  disturb  the  verdict  as  against  the  weight  of  evi- 
dence, but  will  allow  it  to  stand,  and  affirm  the  judgment,  has 
no  force  as  applied  to  a  case  where  the  verdict  has  no  evidence 
at  all  to  support  it.261 

The  fact  may  be  taken  into  consideration  that  the  trial  judge 
has  denied  a  motion  for  a  new  trial.262 

As  dependent  on  motion  for  nonsuit  or  directed  verdict. 

The  rule  supported  by  the  better  reasoning  seems  to  be  that  a 
motion  for  a  nonsuit  or  a  directed  verdict,  at  the  close  of  the 
trial,  is  not  necessary  to  enable  the  defeated  party  to  move  for 
a  new  trial  on  the  ground  that  the  verdict  is  against  the  evi- 
dence,263 and  that  where  the  motion  is  denied  such  question 
may  be  raised  on  an  appeal  from  the  order ; 264  but  that  the 
question  whether  there  is  "any"  evidence  to  support  the 
verdict  cannot  be  reviewed  unless  a  motion  was  made  in  the 
trial  court,  at  the  close  of  the  trial,  for  a  nonsuit  or  directed 
verdict.268  At  any  event,  it  would  seem  that  the  omission  of 
proof,  where  the  trial  is  without  a  jury,  cannot  be  urged  on 
appeal  where  no  motion  to  dismiss  the  complaint  was  made  in 
the   trial   court.266 

Rob.)  490;  Colvin  v.  Brooklyn  Heights  R.  Co.,  32  App.  Div.  76,  52  N.  Y. 
Supp.  698. 

200  Virgil  v.  Newmark,  32  Misc.  753,  65  N.  Y.  Supp.  792. 

2ci  Sergent  v.  Liverpool  &  London  &  Globe  Ins.  Co.,  96  App.  Div.  117, 
89  N.  Y.  Supp.  35. 

262  Cushman  v.  De  Mallie,  46  App.  Div.  379,  61  N.  Y.  Supp.  878. 

263  Shearman  v.  Henderson,  12  Hun,  170;  Picard  v.  Lang,  3  App. 
Div.  51,  38  N.  Y.  Supp.  229. 

204  Citizens'  Bank  v.  Rung  Furniture  Co.,  76  App.  Div.  471,  78  N.  Y. 
Supp.  604. 

205  Volume  2,  p.  2301. 

200  Conroy  v.  Boeck,  45  Misc.  625,  91  N.  Y.  Supp.  80. 


3892  QUESTIONS  REVIEWED  ON  APPEAL.  §  2812 

Art.    1 V.     Appeals   to  the  Supreme  Court  From  an  Inferior  Court. 


ART.    IV.     APPEALS    TO    THE    SUPREME    COURT    FROM     AN     IN- 
FERIOR  COURT. 

§  2812.     Scope  of  review  by  appellate  division. 

Where  an  appeal  is  taken  to  the  appellate  division  of  the  su- 
preme court  from  a  final  judgment  rendered  by  a  county  court, 
or  by  any  other  court  of  record  possessing  original  jurisdic- 
tion, an  order  granting  or  refusing  a  new  trial  for  any  of  the 
causes  mentioned  in  section  999  of  the  Code,  made  by  any  of 
said  courts,  and  questions  of  fact  may  be  reviewed  in  the  same 
manner,  and  to  the  same  extent  as  questions  of  fact  may  be 
reviewed,  upon  appeal  to  the  appellate  division  of  the  supreme 
court  from  a  final  judgment  and  order,  granting  or  refusing 
a  new  trial,  rendered  by  the  same  court.267  So  reads  the 
Code  provision.  In  other  words,  on  an  appeal  from  a  final 
judgment,  if  the  notice  of  appeal  specifies  the  order  for  a  new 
trial  for  review,  the  appellate  division  may  review  the  pro- 
priety of  granting  or  refusing  a  new  trial  on  exceptions  or  be- 
cause the  verdict  is  against  the  evidence  or  is  for  inadequate 
or  excessive  damages.  The  decision  in  Hand  v.  Dorchester, 
43  Hun,  33,  to  the  effect  that  the  supreme  court  could  not  re- 
view an  order  of  the  county  court  granting  or  refusing  a  new 
trial  because  the  verdict  was  against  the  weight  of  evidence, 
and  that  of  Reilly  v.  D.  &  H.  Canal  Co.,  102  N.  Y.  383,  denying 
a  review  because  of  excessive  or  insufficient  damages,  were 
both  overthrown  by  the  amendment  of  this  section  of  the  Code 
of  Civil  Procedure  in  1888,  giving  to  the  appellate  division 
power  to  review  a  final  judgment  of  an  inferior  court,  or  an 
order  granting  or  refusing  a  new  trial  for  any  of  the  causes 
stated  in  section  999  of  the  Code.268  The  appellate  division 
cannot,  however,  review  the  granting  or  refusing  of  an  order 
for  a  new  trial  on  the  ground  of  surprise  or  newly-discovered 
evidence  since  they  are  not  grounds  for  a  new  trial  on  the 
judge's  minutes. 

267  Code  Civ.  Proc.  §  1340. 

268  Kilts  v.  Neahr,  101  App.  Div.  317,  91  N.  Y.  Supp.  945. 


§  2814  QUESTIONS  REVIEWED  ON  APPEAL.  3893 

Art.   V.     Appeals  to  Appellate   Division  From  Appellate   Term. 

§  2813.     Scope  of  review  by  appellate  term  on  appeal  from 
city  court  of  New  York. 

If  the  appeal  is  from  a  final  judgment,  the  scope  of  review 
is  the  same  as  if  the  appeal  was- to  the  appellate  division  from 
a  final  judgment  of  the  supreme  court.269  If  the  appeal  is 
from  an  interlocutory  judgment  or  an  order,  the  appellate 
term  has  full  power  to  review  any  exercise  of  discretion  by  the 
court  or  judge  below.270  Such  is  the  law  as  laid  down  by  the 
Code  amendments  of  1902  which  abolished  the  general  term  of 
the  city  court  of  New  York  and  provided  for  a  direct  appeal 
to  the  supreme  court.  Prior  to  the  amendment  it  was  held 
that  the  supreme  court  could  review  only  questions  of  law,2T1 
but  now  there  is  no  question  but  what  the  review  by  the  su- 
preme court  is  as  broad  as  that  of  the  appellate  division  on  an 
appeal  from  a  judgment  or  order  of  the  supreme  court.  An 
appeal  from  an  order  denying  a  new  trial  on  the  minutes  as 
well  as  from  the  judgment,  brings  up  the  whole  proceedings 
at  the  trial,  including  remarks  made  by  the  trial  judge.2 


272 


ART.  V.     APPEALS  TO  APPELLATE  DIVISION   FROM  APPELLATE 

TERM. 

§  2814.     Appeal  by  leave  of  court. 

Where,  by  leave,  an  appeal  is  taken  from  the  appellate  term 
to  the  appellate  division,  the  scope  of  review  is  not  limited  by 
any  Code  provision  and  it  seems  that  questions  of  fact  are  re- 
viewable as  well  as  questions  of  law.  Of  course,  the  scope  of 
the  review  is  limited  to  the  questions  which  the  appellate  term 
could  review.  The  appellate  term,  on  allowing  an  appeal  to 
the  appellate  division,  cannot  limit  the  scope  of  review  by  cer- 
tifying questions.273 

zee  Code  Civ.  Proc.  §  3188. 

270  Code  Civ.  Proc.  §  3189. 

2ti  Buell  v.  Hollins,  16  Misc.  551,  38  N.  Y.  Supp.  879. 

a"  Reilly  v.  Eastman's  Co.,  28  Misc.  125,  58  N.  Y.  Supp.  1089. 

273  Bang  v.  McAvoy,  52  App.  Div.  501,  65  N.  Y.  Supp.  467. 


CHAPTER  XVII. 

BELIEF  GRANTED  AND  SUBSEQUENT  PROCEDURE. 

ART.   I.     GENERAL   RULES. 

Default  judgments,  §  2815. 

Effect  of  death  of  party  before  decision,  §  2816. 

Appeal  from  order  or  interlocutory  judgment,  §  2817. 

Reversal  for  formal  or  trivial  errors,  §  2818. 

Reversal  in  part  where  all  co-parties  do  not  appeal,  §  2819. 

Reversal  in  toto  where  appeal  is  from  only  part  of  judgment 

or  order,  §  2820. 
Reversal  in  part  where  appeal  is  from  all  of  judgment,  §  2821. 
Propriety  of  ordering  final  judgment,  §  2822. 
Reversal    or   modification,    §   2823. 

Reducing  the   recovery. 

Increasing  the  recovery. 

Allowing  amendments  to  avoid  reversal,  §  2824. 
Where  both  parties  appeal,  §  2825. 
Incidental  relief  to  unsuccessful  party,  §  2826. 
Restitution,  §  2827. 

Power  of  appellate  court  as  exclusive. 

Order  as  discretionary. 

Propriety  of  granting. 

Extent  of  relief  granted. 

Motion. 

Enforcement  of  order. 

Appeal   from   order. 

Enforcement  of  judgment  affirmed,  §  2828. 

Motion  for  new  trial  after  affirmance. 

Noting  reversal  or  modification  of  money  judgment  on  docket 

book,   §   2829. 
Effect  of  reversal,  §  2830. 
New  trial,  §  2831. 

Mode  of  trial. 

Amendment  of  pleadings. 

Evidence. 

Law  of  the  case. 

New  hearing  of  motion  in  the  lower  court,  §  2832. 


§  2815  RELIEF  GRANTED  ON  APPEAL.  3895 


Art.  I.     General  Rules. 


ART.  II.  APPEAL  TO  THE  COURT  OF  APPEALS. 

Judgment,  §  2833. 

On  stipulation  from  judgment  absolute. 

On  appeal  from  order  granting  a  new  trial  on  the  facts. 

Remittitur,  §  2834. 

Form  and  contents. 

Filing. 

Staying  the  filing. 

Judgment  or  order  entered  on. 

Effect  as  divesting  jurisdiction. 

Amendment. 

Return  of  assessment  of  damages  in  lower  court,  §  283b. 

ART.  III.  APPEAL  TO  APPELLATE  DIVISION  FROM  TRIAL  OR 
SPECIAL  TERM. 

Disposition  of  appeal,   §   2836. 

Appeal  from  nonsuit  or  verdict  directed  after  issues  sub- 
mitted to  jury. 

Contents  of  judgment  or  order,  §  2837. 

Amendment. 

Resettlement. 

Entry  of  order  made  on  appeal  and  subsequent  procedure, 
§  2838. 

Necessity  that  judgment  be  entered. 

■ Stay  of  proceedings  after  entry  of  judgment. 

Judgment  roll  where  appellate  division  affirms,  §  2839. 

Applications  to  appellate  division  after  determination  of  ap- 
peal by  court  of  appeals,  §  2840. 

ART.  IV.  APPEAL  TO  SUPREME  COURT  FROM  AN  INFERIOR 
COURT. 

General  considerations,   §   2841. 
Judgment  or  order,  §  2842. 

Appeals  from  city  courts  of  New  York  or  Buffalo. 

Appeals  from  final  orders  in  special  proceedings. 

ART.  V.     APPEAL     FROM     APPELLATE    TERM     TO    APPELLATE 
DIVISION. 
Code  provision,  §  2843. 

ART.   I.     GENERAL   RULES. 

§  2815.     Default  judgments. 

Judgments    of   reversal    by    default    will    not    be    allowed. 
"When  a  cause  is  called  in  its  order  on  the  calendar,  if  the  ap- 


3896  RELIEF  GRANTED  ON  APPEAL.  §  2S16 

Art.   I.     General   Kules. — Default  Judgments. 

pellanl  tails  to  appear  and  furnish  the  court  with  the  papers 
required,  and  argue  or  submit  his  cause,  judgment  of  affirm- 
ance by  default  will  be  ordered  on  motion  of  the  respondent.  If 
the  appellant  only  appears  he  may  either  argue  or  submit  the 
cause.1  This  rule  applies  to  appeals  to  the  appellate  division 
as  well  as  to  appeals  to  the  court  of  appeals.  This  rule  was 
not  intended  to  impose  on  the  judges  the  duty  of  acting  as 
counsel  for  the  party  who  does  not  appear  to  prosecute  or 
defend,  but  to  save  to  parties  acting  in  good  faith  a  further 
opportunity  to  present  a  printed  brief,  and  save  the  court  the 
loss  of  time  formerly  consumed  in  hearing  motions  to  open  de- 
faults.2 On  good  cause  shown,  the  default  may  be  opened,  on 
terms  such  as  the  payment  of  a  counsel  fee  and  the  costs  of 
the  term.3 

In  the  court  of  appeals,  when  any  cause  shall  be  regularly 
called  for  argument,  and  no  other  disposition  shall  be  made 
thereof,  the  appeal  shall  be  dismissed  without  costs,  and  an 
order  shall  be  entered  accordingly,  which  shall  be  absolute  un- 
less upon  application  made  and  good  cause  shown,  upon  notice 
to  the  opposite  party  within  ten  days,  if  the  court  is  in  session, 
and  if  not  on  the  first  motion  day  of  the  next  session,  the  court 
shall  revoke  said  order  and  restore  said  appeal.4 

In  the  appellate  division,  if  neither  party  appears,  the  case 
will  be  passed  and  placed  at  the  foot  of  the  calendar.  If  twice 
passed  the  clerk  shall  enter  an  order  of  course  dismissing  the 
appeal  or  the  proceedings,  but  the  court  may,  on  motion,  va- 
cate the  order  and  restore  the  cause.5 

§  2816.     Effect  of  death  of  party  before  decision. 

When  a  party  dies  after  argument  but  before  decision,  the 

1  Rule  15  of  the  court  of  appeals;  Rule  39  of  the  General  Rules  of 
Practice. 

2  Maher  v.  Carman,  38  N.  Y.  25. 

s  Conant  v.  Vedder,  4  How.  Pr.  141. 

4  Rule  15  of  court  of  appeals. 

5  Rule  39  of  General  Rules  of  Practice. 


§  2917  RELIEF  GRANTED  ON  APPEAL.  3897 


Art.  I.     General  Rules. 


order  of  affirmance  may  be  entered  nunc  pro  tunc  as  the  day 
of  the  argument.6 

§  2817.     Appeal  from  order  or  interlocutory  judgment. 

On  appeal  from  an  order,  the  appellate  division  may  make 
the  order  which  the  lower  court  should  have  made,7  except 
that  on  reversing  an  order  denying  a  motion  for  want  of 
power  in  the  lower  court,  the  case  should  be  remitted  to  the 
lower  court  to  exercise  its  jurisdiction.8  If  the  trial  court  im- 
properly denied  a  motion  on  a  question  of  practice  without 
passing  on  the  merits,  the  appellate  court  will  not  grant  the 
motion  but  will  remit  it  to  be  heard  on  its  merits.0  On  revers- 
ing an  order,  if  further  proof,  is  to  be  taken,  the  appellate  court 
ordinarily  will  remit  the  proceedings  to  the  lower  court.10  On 
affirming  an  order  overruling  a  demurrer  it  seems  that  the  ap- 
pellate court  has  the  power  to  permit  the  demurrer  to  be  with- 
drawn and  an  answer  interposed,  though  the  lower  court  has 
refused  the  favor.11  But  where  a  demurrer  is  overruled  and 
leave  given  to  withdraw  it  and  plead  over,  but  the  demurrant 
allows  judgment  to  be  entered  against  him,  and  then  appeals, 
the  appellate  court  will  not,  on  affirmance,  grant  leave  to  plead 

e  Bergen  v.  Wyckoff,  1  Civ.  Proc.  R.  (McCarty)  1. 

7  Knauer  v.  Globe  Mut.  Life  Ins.  Co.,  46  Super.  Ct.  (14  J.  &  S.)  370; 
Howard  v.  Freeman,  30  Super.  Ct.  (7  Rob.)  25,  42;  Bennett  v.  Lake, 
47  N.  Y.  93.  But  the  appellate  court  cannot  amend  the  order  so  as  to 
state  the  ground  for  denying  relief,  as  that  the  motion  was  denied  for 
want  of  power,  since  to  do  so  would  be,  in  effect,  to  direct  the  decision 
on  that  particular  ground.  Hall  v.  Gilman,  87  App.  Div.  248,  84  N.  Y. 
Supp.  279,  followed  in  Davis  v.  Reflex  Camera  Co.,  99  App.  Div.  567, 
90  N.  Y.  Supp.  877. 

s  Hewlett  v.  Wood,  67  N.  Y.  394;  Reed  v.  City  of  New  York,  97  N.  Y. 
620.    See,  also,  Fox  v.  Matthiessen,  155  N.  Y.  177. 

a  Larkin  v.  Watson  Wagon  Co.,  68  App.  Div.  86,  74  N.  Y.  Supp.  73. 

io  Matter  of  Mitchell,  57  App.  Div.  22,  67  N.  Y.  Supp.  961;  Ellis  v. 
Salomon,  57  App.  Div.  118,  67  N.  Y.  Supp.  1025. 

n  Piper  v.  Hoard,  107  N.  Y.  73,  84.  In  this  case  leave  was  refused 
because  leave  had  twice  been  refused  in  the  supreme  court,  but  leave 
was  granted  to  apply  to  the  supreme  court  for  such  relief. 


3898  RELIEF  GRANTED  ON  APPEAL.  8  ^818 


Art.  I.     General  Rules. 


over.12  On  reversing  an  order  sustaining  a  demurrer,  the  ap- 
pellate court  may  grant  leave  to  plead  over.18  On  appeal  from 
an  order  denying  a  motion  to  open  a  default,  the  appellate 
court  may  open  the  default  and  fix  the  terms.14 

§  2818.     Reversal  for  formal  or  trivial  errors. 

A  merely  formal  error  which  ought  to  have  been  amended 
on  the  trial,  without  imposing  terms,  must  be  disregarded  on 
appeal.15  So  the  court  of  appeals  will  not  reverse  an  order  of 
the  appellate  division  dismissing  an  appeal  on  the  ground  that 
an  affirmance  would  have  been  technically  the  more  correct 
practice.10  Error  in  failing  to  show  interest  which  would" 
amount  to  a  trifling  sum  is  too  insignificant  to  furnish  ground 
for  reversal.17 

A  reversal  and  new  trial  will  not  be  granted  to  plaintiff 
merely  to  enable  him  to  recover  nominal  damages,18  except 
where  it  appears  that  a  substantial  right  is  in  controversy 
which  may  be  defeated,  prejudiced  or  impaired  by  a  dismissal 
of  the  complaint  and  which  may  be  saved  by  the  recovery  of 
judgment  for  a  nominal  sum.     If  nominal  damages  will  entitle 

12  Whiting  v.  City  of  New  York,  37  N.  Y.  600;  Fisher  v.  Gould,  9  Daly, 
144. 

is  Fulton  Fire  Ins.  Co.  v.  Baldwin,  37  N.  Y.  648,  652.  Leave  should 
be  granted  where  the  demurrer  was  interposed  in  good  faith  and  the 
case  is  one  in  which  the  court  below  should  have  granted  such  leave. 
Id. 

14  Mechanics'  Sav.  Bank  v.  Carman,  5  Wkly.  Dig.  28. 

ib  Bank  of  Havana  v.  Magee,  20  N.  Y.  355. 

is  Emmerich  v.  Hefferan,  97  N.  Y.  619. 

it  Hartmann  v.  Burtis,  65  App.  Div.  481,  72  N.  Y.  Supp.  914. 

is  Hopedale  Elec.  Co.  v.  Electric  Storage  Co.,  96  App.  Div.  344,  352, 
89  N.  Y.  Supp.  325.  Brantingham  v.  Fay,  1  Johns.  Cas.  255;  La  Rue  v. 
Smith,  153  N.  Y.  428;  Simis  v.  McElroy,  160  N.  Y.  156;  Throckmorton 
v.  Evening  Post  Pub.  Co.,  35  App.  Div.  396,  54  N.  Y.  Supp.  887;  Hoffer- 
berth  v.  Myers,  71  App.  Div.  377,  75  N.  Y.  Supp.  1116;  Rollins  v.  Bow- 
man Cycle  Co.,  96  App.  Div.  365,  89  N.  Y.  Supp.  289;  Skinner  v.  Alli- 
son, 54  App.  Div.  47,  66  N.  Y.  Supp.  288.  See,  also,  Thomson-Houston 
Elec.  Co.  v.  Durant  Land  Imp.  Co.,  144  N.  Y.  34;  Rambaut  v.  Irving 
Nat.  Bank,  42  App.  Div.  143,  58  N.  Y.  Supp.  1056. 


§  2820  RELIEF  GRANTED  ON  APPEAL.  3899 

Art.  I.     General  Rules. 

the  plaintiff  to  costs,19  or  the  costs  of  a  former  appeal  depend 
on  the  result  of  the  trial,20  a  reversal  will  not  be  refused  be- 
cause only  nominal  damages  are  recoverable. 

§  2819.    Reversal  in  part  where  all  co-parties  do  not  appeal. 

If  the  liability  of  defendants  is  not  joint,  and  only  a  part 
of  them  appeal,  the  reversal  will  be  only  as  to  the  appellant.21 
But  if  the  liability  is  joint,  the  reversal  may  extend  to  the  co- 
party  who  does  not  appeal  or  who  has  taken  a  separate 
appeal.22 

§  2820.     Reversal  in  toto  where  appeal  is  from  only  part  of 
judgment  or  order. 

Generally  speaking,  where  an  appeal  is  taken  from  only  a 
part  of  a  judgment  or  order,  the  review  is  limited  to  the  part 
appealed  from,  and  the  balance  of  the  judgment  or  order  is 
not  affected  by  the  determination  of  the  appellate  court. 
Where  an  appeal  is  taken  from  a  distinct  and  separate  portion 
of  a  judgment,  a  new  trial  may  be  granted  as  to  that  portion 
only  without  a  reversal  of  the  residue.23  But  a  judgment  may 
be  reversed  in  toto  though  the  appeal  is  only  from  a  part  of 
the  judgment  where  the  portions  of  the  judgment  are  so  closeky 
related  that  if  one  falls  all  must  fall.24     So  where  there  has 

i9  National  Cash  Register  Co.  v.  Schmidt,  48  App.  Div.  472,  02  N.  Y. 
Supp.  952;  Moore  v.  New  York  El.  R.  Co.,  4  Misc.  132,  30  Abb  N.  C.  306, 
23  N.  Y.   Supp.   863. 

20  Goldzier  v.  Central  R.  Co.  of  New  Jersey,  90  N.  Y.  Supp.  435. 

2i  Newburgh  Sav.  Bank  v.  Town  of  Woodbury,  64  App.  Div.  305,  72 
N.  Y.  Supp.  222.  Reversal  operates  only  in  favor  of  appellant.  Belden 
v.  Andrews,  14  App.  Div.  630,  43  N.  Y.  Supp.  587. 

22  See  Boice  v.  Jones,  94  N.  Y.  Supp.  896. 

23  Wilson  v.  Mechanical  Orguinette  Co.,  170  N.  Y.  542,  553. 

24  Electric  Boat  Co.  v.  Howey,  96  App.  Div.  410,  89  N.  Y.  Supp.  210. 
Where  a  judgment  conditionally  directed  respondent  to  write  out  and 
deposit  a  chemical  formula,  and  further  adjusted  the  respective  inter- 
ests of  respondent  and  appellants  in  the  capital  stock  of  a  corporation, 
and  the  judgment  was  reversed  on  appeal  from  that  portion  thereof 
which  adjusted  the  interest  in  the  stock  of  the  corporation,  it  should  be 


3900  RELIEF  GRANTED  ON  APPEAL.  §  2821 

Art.   I.     General   Rules, 

been  a  series  of  orders  connected  with  the  same  matter,  so  that 
if  one  is  erroneous  all  are,  all  may  be  reversed  on  an  appeal 
from  one  of  the  orders.25 

§  2821.     Reversal  in  part  where  appeal  is  from  all  of  judg- 
ment. 

In  an  action  at  law,  the  rule  is  that  there  cannot  be  an 
affirmance  of  one  part  of  a  claim  and  a  new  trial  granted  as  to 
another  part  of  the  claim,  if  the  judgment  is  entire.26  So  a 
new  trial  cannot  be  granted  as  to  one  defendant  and  the  judg- 
ment affirmed  as  to  another  if  the  judgment  is  entire.27  On  an 
appeal  from  a  judgment  which  is  entire  and  against  several 
defendants,  the  appellate  court  must  either  totally  affirm  or 
reverse,  both  as  to  the  recovery  and  as  to  all  the  parties;  but  in 
cases  where  there  are  separate  and  distinct  judgments,  or 
where  an  error  exists  as  to  a  separate  claim  or  defense,  which 
relates  only  to  a  transaction  between  the  plaintiff  and  one  of 
the  defendants,  the  judgment  may  be  reversed  as  to  such  a 
claim  or  defense,  and  only  as  to  the  parties  interested  therein, 
and  affirmed  as  to  the  remainder.28  Where  there  are  distinct 
and  separate  items,  and  error,  either  of  fact  or  law,  has  been 
committed  on  the  trial  in  respect  to  one  or  more  of  the  claims 
embraced  in  the  recovery,  the  appellate  division,  if  no  other 
error  exists,  may,  instead  of  reversing  the  judgment  abso- 
lutely, #re  verse  it  only  as  to  the  erroneous  items,  and  affirm  it 
as  to  the  residue,  provided  the  successful  party  consents  to 
forego  his  claim  to  recover  them,  and  the  items  as  to  which  the 
error  exists  are  separate  and  distinguishable  from  the  others.29 

reversed  as  a  whole,  although  there  was  no  appeal  from  the  portion 
directing  the  deposit  of  the  formula.  Hunter  Smokeless  Powder  Co.  v. 
Hunter,  100  App.  Div.  191,  91  N.  Y.  Supp.  620. 

25  Stanton  v.  King,  76  N.  Y.  585. 

26  Wolstenholme  v.  Wolstenholme  File  Mfg.  Co.,  64  N.  Y.  272;  Coch- 
ran v.  Reich,  91  Hun,  440,  447,  36  N.  Y.  Supp.  233. 

27  This  rule  also  applies  to  suits  in  equity.  Altman  v.  Hofeller,  152 
N.  Y.  498,  506. 

2s  Altman  v.  Hofeller.  152  N.  Y.  498,  504,  and  cases  cited. 
29  YvTiitehead  v.  Kennedy,  69  N.  Y.  462,  468. 


§  2822  RELIEF  GRANTED  ON  APPEAL.  3901 

Art.   I.     General  Rules. — Reversal  in  Part. 

A  reversal  and  new  trial  as  to  some  of  the  defendants  and 
affirmance  as  to  the  others  is  proper  only  where  the  interests " 
and  the  issues  between  defendants  are  so  far  separate  that  on 
a  new  trial  the  issues  between  the  plaintiff  and  the  defendants 
as  to  which  it  is  affirmed  will  not  be  involved  or  determined.30 
This  rule  also  applies  to  separate  and  distinct  causes  of  action 
set  forth  in  the  complaint.31  Where  several  causes  of  action 
are  joined  and  a  recovery  is  had  on  all  against  the  single  de- 
fendant, the  appellate  division  cannot  affirm  the  judgment  as 
to  one  cause  of  action  and  reverse  it  and  grant  "a  new  trial" 
as  to  the  other,  since  a  new  trial  in  a  common-law  action 
against  a  single  defendant  can  be  granted  only  as  to  the  whole 
action;32  but  where  causes  of  action  are  joined  in  the  complaint 
and  a  recovery  had  on  all,  but  on  appeal  it  is  held  that  no  re- 
covery, under  any  event,  is  proper  on  a  part  of  the  causes  of 
action,  and  the  amount  claimed  on  each  is  definite  and  can  be 
easily  separated  from  the  judgment  rendered  in  gross  for  the 
entire  sum  alleged  to  be  due,  the  appellate  court  should  not 
reverse  but  should  modify  the  judgment  by  making  the  proper 
reduction  and  affirm  it  as  thus  modified.33  Where  plaintiff 
is  nonsuited  as  to  one  cause  of  action  and  his  complaint  is  dis- 
missed on  the  merits  as  to  the  other  cause  of  action,  there  may 
be  a  reversal  and  a  new  trial  granted  as  to  the  one  cause  of 
action  though  the  judgment  is  affirmed  in  so  far  as  the  second 
cause  is  concerned.34 


§  2822.     Propriety  of  ordering  final  judgment. 

To  justify  an  appellate  court  in  awarding  final  judgment^ 
it  must  appear  that  the  facts  upon  which  the  right  of  recovery 
rests  are  undisputed,  and  cannot  be  varied  upon  another  trial, 
or  that  they  are  established  by  official  records,  or  that  they 

soAltman  v.  Hofeller,  152  N.  Y.  498. 
3i  Crim  v.  Starkweather,  88  N.  Y.  339. 

32  Goodsell  v.  Western  Union  Tel  Co.,  109  N.  Y.  147. 

33  Freel  v.  County  of  Queens,  154  N.  Y.  661. 

34  Talcott  v.  Wabash  R.  Co.,  99  App.  Div.  239,  90  N.  Y.  Supp.  1037. 


3902  RELIEF  GRANTED  ON  APPEAL.  §  2n22 


Art.  I.     General  Rules. — Ordering  Final  Judgment. 


have  been  specifically  found  by  the  jury  or  trial  court.35  On 
reversing,  a  new  trial  must  be  granted  unless  it  is  apparent,  in 
the  very  nature  of  the  case,  that  the  party  against  whom  the 
reversal  is  pronounced  can  never  succeed  in  the  action,30  i.  e., 
that  no  possible  state  of  proof  applicable  to  the  issues  will  en- 
title him  to  judgment.37  The  appellate  division  cannot  reverse 
a  finding  of  fact  and  modify  the  judgment  in  accordance 
therewith  but  must  order  a  new  trial.38  If  only  nominal  dam- 
ages are  allowed  where  substantial  damages  should  have  been 
allowed,  a  new  trial  must  be  ordered.39  It  is  proper  to  reverse 
and  dismiss  the  complaint  where  it  is  plain  from  the  pleadings 
and  the  nature  of  the  controversy  that  the  plaintiff  cannot  suc- 
ceed because  he  must  resort  to  another  remedy.40 

A  distinction  was  formerly  made  in  the  exercise  of  the  power 
to  order  judgment  absolute  against  the  respondent  on  a  re- 
versal, between  actions  at  law  and  suits  in  equity,  as  it  was 
held  that  in  the  former  it  should  affirmatively  appear  of  in- 
evitable necessity  that  the  party  could  not  succeed  on  a  new 
trial,  and  in  the  latter  that  it  was  only  necessary  that  the  ap- 
pellate court  should  be  satisfied  that  a  final  judgment  would 
not  work  injustice;41  but  this  distinction  no  longer  exists.42 
On  the  reversal  of  a  judgment  dismissing  the  complaint  after 

35  Griffin  v.  Marquardt,  17  N.  Y.  28;  Benedict  v.  Arnoux,  154  N.  Y.  715, 
724,  727;  Matter  of  Chapman,  162  N.  Y.  456;  Dixon  v.  James,  181  N. 
Y.  129.     For  additional  cases,  see  1  Abb.  Cyc.  Dig.  645-650. 

ssSchenck  v.  Dart,  22  N.  Y.  420;  Mansfield  v.  City  of  New  York,  165 
N.  Y.  208;  Heerwagen  v.  Crosstown  St.  R.  Co.,  179  N.  Y.  99.  It  is  not 
enough  that  it  is  improbable  that  he  may  succeed  but  it  must  appear 
that  he  certainly  cannot.  Griffin  v.  Marquardt,  17  N.  Y.  28;  Foot  v. 
Etna  Life  Ins.  Co.,  61  N.  Y.  571;  New  v.  Village  of  New  Rochelle,  158 
N.  Y.  41;  Hendrickson  v.  City  of  New  York,  160  N.  Y.  144;  Howells 
v.  Hettrick,  160  N.  Y.  308. 

37  Edmonston  v.  McLoud,  16  N.  Y.  543. 

as  New  York  Bank  Note  Co.  v.  Hamilton  B.  N.  E.  &  P.  Co.,  180  N.  Y. 
280;  Van  Beuren  v.  Wotherspoon,  164  N.  Y.  368;  Dixon  v.  James,  181  N. 
Y.  129. 

39  Andrews  v.  Tyng,  94  N.  Y.  16. 

^oHusted  v.  Thomson,  158  N.  Y.  328,  338. 

4i  Muldoon  v.  Pitt,  54  N.  Y.  269. 

42  Benedict  v.  Arnoux,  154  N.  Y.  715,  723. 


§  2S23  RELIEF  GRANTED  ON  APPEAL.  3903 

Art.  I.     General  Rules. — Ordering-  Final  Judgment. 

an  order  setting  aside  the  verdict  for  want  of  jurisdiction,  the 
appellate  court  may,  if  the  evidence  sustains  the  verdict  and 
no  error  prejudicial  to  defendant  appears,  restore  the  verdict 
with  leave  to  plaintiff  to  enter  judgment  thereon.43  If  the 
recovery  on  a  counter-claim  is  reversed,  a  new  trial  need  not 
be  ordered  since  the  judgment  may  be  modified  by  striking  out 
the  recover}^  thereon.44  The  appellate  court  will  not  grant  a 
new  trial  to  enable  plaintiff  to  ask  for  a  judgment  on  a  differ- 
ent theory  from  that  presented  in  the  trial  court  and  inconsist- 
ent with  the  case  made  by  the  complaint.45 

A  new  trial  will  not  be  ordered  where  it  would  be  a  useless 
formality  as  where  the  death  of  defendant  has  rendered  in- 
competent the  only  evidence  which  the  plaintiff  has  to  es- 
tablish his  cause  of  action.46 

§  2823.     Reversal  or  modification. 

Where  the  facts  are  conceded  or  have  been  found  on  the 
.trial  and  are  not  in  dispute,  the  appellate  court  may  render 
the  judgment  which  should  have  been  rendered  below.47  For 
instance,  where  the  lower  court  erred  in  refusing  to  direct  a 
judgment  required  b}*  the  facts  found,  the  appellate  court  may 
correct  such  error  and  direct  the  proper  judgment.4S  The  ap- 
pellate court  may  strike  out  an  unauthorized  provision  in  the 
judgment  or  order  appealed  from  though  relief  could  have 
been  obtained  by  a  motion  in  the  lower  court.40  The  appellate 
court  may,  instead  of  reversing,  modifj^  the  form  of  the  judg- 
ment,50 as  by  inserting  a  direction  for  the  reformation  of  a 

43  Strawn  v.  Edward  J.  Brandt-Dent  Co.,  71  App.  Div.  234,  75  N.  Y. 
Supp.  698. 

44  Sugden  v.  Magnolia  Metal  Co.,  58  App.  Div.  236,  68  N.  Y.  Supp.  809. 

45  Third  Nat.  Bank  v.  Cornes,  20  Wkly.  Dig.  30;  Spink  v.  Co-Operative 
Fire  Ins.  Co.,  25  App.  Div.  484,  490,  49  N.  Y.  Supp.  730. 

46  Baker  v.  Lever,  5  Hun,  114. 

47  Wood  v.  Monroe  County  Sup'rs,  30  State  Rep.  706. 
43  Outwater  v.  Moore,  124  N.  Y.  66. 

4»  Hewitt  v.  Ballard,  16  App.  Div.  466,  44  N.  Y.  Supp.  935. 
so  People   v.    Richmond    County   Sup'rs,   28   N.    Y.    112;    Fitzhugh    v. 
Wiman,  9.N.  Y.  559;  Little  v.  Gallus,  39  App.  Div.  646,  57  N.  Y.  Supp. 


3904  RELIEF  GRANTED  ON  APPEAL.  §2823 

Art.    1.      General   TUilos. — Reversal   or  Modification. 

contract,51  or  by  amending  the  decree  to  make  it  conform  to 
the  findings  of  fact  and  conclusions  of  law52  or  by  changing  a 
dismiss, il  on  the  merits  to  a  nonsuit,53  or  vice  versa.54 

Reducing    the    recovery.     Where    a    judgment    is    too 

large,  and  the  error  on  the  trial  involves  simply  the  amount 
dl'  recovery,  and  the  effect  thereof  can  he  clearly  and  definitely 
determined  on  the  evidence  before  the  appellate  court,  the 
appellate  court,  while  it  cannot  itself  reduce  the  damages, 
may  permit  the  respondent  to  consent  to  a  reduction  to  avoid 
a  reversal  and  a  new  trial.  This  rule  applies  to  actions  in 
tort  as  well  as  to  actions  on  contract.55  In  other  words,  if  the 
amount  recovered  is  in  excess  of  that  which  should  have  been 
allowed,  and  the  excess  consists  of  a  distinct  item  or  can  be 
definitely  ascertained  by  mere  computation,  the  appellate  court 
may  properly  modify  the  judgment  by  reducing  the  amount 
thereof  instead  of  reversing  it.  For  instance,  where  the  facts 
appear  in  the  decision  or  report,  where  the  trial  is  without  a 
jury,  or  in  a  special  verdict,  where  the  trial  is  by  a  jury,  the 
appellate  court  may  rectify  an  error  bearing  on  the  damages 
by  directing  the  specific  amount  for  which  judgment  shall  be 
entered,  where  the  damages  are  severable,  and  the  finding  or 
verdict  supplies  the  data  for  determining  what  part  of  the 
damages  are  erroneously  awarded.  This  may  be  done  abso- 
lutely without  giving  a  right  of  election  to  any  of  the  parties. 
A  different  rule  prevails,  however,  where  a  jury  has  rendered 
a  general  verdict,  especially  in  an  action  based  on  a  tort  where 
the  damages  are  unliquidated.  In  such  a  case,  the  appellate 
court  cannot  absolutely  reduce  the  amount  of  the  recovery  to  a 

104.     Judgment  for  sum  of  money  may  be  modified  by  changing  it  into 
an  interlocutory  judgment  directing  a  reference  to  ascertain  the  amount 
due.     Gautier  v.  Douglass  Mfg.  Co.,  13  Hun,  514. 
si  Born  v.  Schrenkeisen,  110  N.  Y.  55. 

52  Livingston  v.  Manhattan  R.  Co.,  4  App.  Div.  165,  38  N.  Y.  Supp. 
751. 

53  Arnold  v.  Rothschild's  Sons  Co.,  23  App.  Div.  221,  48  N.  Y.  Supp. 
854. 

54  Johnson  v.  Lord,  35  App.  Div.  325,  54  N.  Y.  Supp.  922. 

55  Vail  v.  Reynolds,  118  N.  Y.  297,  303. 


R  2823  RELIEF  GRANTED  ON  APPEAL.  3905 

Art.   I.      General  Rules. — Reversal   or  Modification. 

fixed  sum,  though  it  unquestionably  may  require  the  successful 
party  to  elect  to  couseut  to  a  reduction  of  the  verdict  or  suffer 
a  reversal.00  Usually  the  appellate  court  will  not  remaud  for 
a  new  trial  because  the  verdict  is  excessive  where  the  items 
objected  to  can  be  stricken  out  and  a  judgment  rendered  for 
those  regarding  which  no  error  is  shown,57  especially  where 
the  evidence  will  be  the  same  on  a  second  trial.58  For 
instance,  an  improper  allowance  of  interest  does  not  necessi- 
tate a  reversal  where  the  respective  amounts  of  principal  and 
interest  included  in  the  judgment  can  be  separated.59  So 
where  a  judgment  entered  on  the  report  of  a  referee  errone- 
ously awards  more  than  nominal  damages,  it  may  be  modified 
by  reducing  the  damages.60  If  the  action  is  based  on  a  con- 
tract or  on  an  injury  to  property,  and  the  case  is  tried  by  the 
court  or  a  referee,  without  a  jury,  and  the  items  of  damage 
which  are  improperly  awarded  clearly  appear,  together  with 
the  amount  thereof,  the  appellate  court  will  not  reverse  be- 
cause thereof  but  will  affirm  the  judgment  as  reduced.61  How- 
ever, it  is  discretionary  with  the  appellate  court,  where  the 
judgment  is  erroneous  only  in  that  it  is  too  large,  whether  to 
reverse  absolutely  and  order  a  new  trial  or  affirm  on  condition 
that  respondent  consent  to  it.02  So  where  a  judgment  is  erron- 
eous in  permitting  a  recovery  for  more  than  one  penalty, 
whether  it  shall  be  reversed  or  modified  so  as  to  permit  a 
single  recovery  is  in  the  discretion  of  the  appellate  court.03 

There  is  little,  if  any,  dispute  as  to  the  above  rules  and  their 
application.     There   has  been   some   question,   however,   as   to 

so  Holmes  v.  Jones,  121  N.  Y.  461,  467;  Stemmerman  v.  Nassau  Elec. 
R.  Co.,  36  App.  Div.  218,  56  N.  Y.  Supp.  730.  See,  as  contra,  Thaule  v. 
Krekeler,  17  Hun,  338. 

st  McGrath  v.  Third  Ave.  R.  Co.,  9  App.  Div.  141,  41  N.  Y.  Supp.  93. 

ssHeerwagen  v.  Crosstown  St.  R.  Co.,  179  N.  Y.  99. 

50  Crawford  v.  Mail  &  Exp.  Pub.  Co.,  22  App.  Div.  54,  47  N.  Y.  Supp. 
747;  Cox  v.  Island  Min.  Co.,  65  App.  Div.  508,  516,  73  N.  Y.  Supp.  69. 

co  Sackett  v.  Thomas  4  App.  Div.  447,  38  N.  Y.  Supp.  608. 

si  See  Garrett  v.  Wood,  55  App.  Div.  281,  67  N.  Y.  Supp.  122. 

e2  See  Godfrey  v.  Moser,  66  N.  Y.  250. 

88  Matter  of  Transfer  Penalty  Cases,  92  N.  Y.  Supp.  322. 

N.  Y.  Prac.—  245. 


3900  RELIEF  GRANTED  ON  APPEAL.  §  2823 

Art.   I.      General  Rules. — Reversal   or  Modification. 

the  power  of  the  appellate  court  to  authorize  a  reduction  of 
the  damages  in  an  action  for  a  personal  injury  to  avoid  a  re- 
versal. At  one  time  it  was  held  that  in  an  action  for  a  personal 
tort  where  the  appellate  court  deemed  the  damages  excessive, 
it  could  not  make  a  conditional  order  reversing  the  judgment 
and  granting  a  new  trial  unless  the  plaintiff  would  consent  to 
a  reduction  of  the  damages  to  a  specified  sum,64  but  such 
practice  is  very  common  now  and  the  power  of  the  appellate 
court  is,  it  is  submitted,  unquestioned.65 

Under  the  Code  provision  (now  abolished)  authorizing  a 
short-form  decision  or  report,  on  appeal  from  which  the  ap- 
pellate division  could  "grant  to  either  party  the  judgment 
which  the  facts  warrant,"  it  was  held  that  the  court  could 
apportion  the  award  made  for  rental  damage  in  an  abutter's 
action  and  modify  the  judgment  by  deducting  the  items  erron- 
eously allowed.66 

Increasing-  the  recovery.     Where  the  judgment  is  too 

small,  and  plaintiff  appeals,  the  court  may  either  reverse  and 
order  a  new  trial,  or  may  reverse  and  order  a  new  trial  unless 
the  defendant  consents  to  increase  the  recovery ; 67  but  the  ap- 
pellate court  cannot  itself  add  to  the  original  judgment  a  sum 
which  it  finds  from  the  evidence  to  be  due  plaintiff,  where  the 
question  in  regard  thereto  is  one  of  fact.68  Where  the  trial  is 
by  the  court  without  a  jury,  or  by  a  referee,  and  the  findings 
of  the  court  justify  an  increase  in  the  amount  of  the  recovery, 
the  appellate  court  may  modify  the  judgment  by  increasing  it, 
but  it  cannot  where  there  are  no  findings  and  the  evidence 
might  be  materially  different  on  a  second  trial.69 

«*  Cassin  v.  Delany,  38  N.  Y.  178. 

«5  Whitehead  v.  Kennedy,  69  N.  Y.  462,  469;  Kaplan  v.  Metropolitan 
St.  R.  Co.,  52  App.  Div.  296,  65  N.  Y.  Supp.  91. 

cfl  Farrell  v.  Manhattan  R.  Co.,  43  App.  Div.  143,  59  N.  Y.  Supp.  401. 
See,  also,  Lazarus  v.  Metropolitan  El.  R.  Co.,  14  App.  Div.  438,  43  N.  Y. 
Supp.  873. 

67  Murphy  v.  Long,  1  Hilt.  309.  In  Wappus  v.  Donelly,  91  N.  Y.  Supp. 
381,  the  judgment  was  affirmed  on  condition  that  respondent  stipulate  to 
waive  the  costs  of  the  appeal. 

es  Dayton  v.  Parke  142  N.  Y.  391,  398. 

69  Canaday  v.  Stiger,  35  Super.  Ct.   (3  J.  &  S.)   423.     See,  as  contra, 


§  2824  RELIEF  GRANTED  ON  APPEAL.  3907 


Art.  I.     General  Rules. 


§  2824.     Allowing  amendments  to  avoid  reversal. 

An  amendment  of  the  pleadings  will  be  allowed  on  appeal  to 
sustain,  but  never  to  reverse,  the  judgment.70  An  amendment 
will  be  allowed,  however,  only  Avhere  an  amendment  could 
have  been  allowed  in  the  trial  court.71  An  amendment  may 
be  allowed  to  conform  the  pleadings  to  the  facts  proved,72 
provided  a  new  cause  of  action  is  not  introduced ; 73  or  the 
appellate  court  may  treat  the  complaint  as  amended  in  the 
trial  court.74  In  support  of  a  judgment,  the  court,  on  appeal, 
may  treat  pleadings  as  though  they  had  been  amended  so  as 
to  conform  to  the  proof  where  it  can  be  done  without  overrul- 
ing an  exception  well  taken  on  the  question  of  variance.75 
Pleadings  will  not  be  amended  to  conform  to  the  proof  where 
the  question  was  presented  on  the  trial  and  the  motion  to 
amend  denied.76  So  the  appellate  division  cannot  conform 
the  complaint  to  one  of  several  views  of  the  evidence  for  the 
purpose  of  reversing  a  judgment  which,  according  to  the 
pleadings  and  proof,  was  correct.77  An  addition  of  interest 
to  the  amount  of  the  judgment  demanded  and  recovered  may 

Kingsley  v.  City  of  Brooklyn,  5  Abb.  N.  C.  1,  35,  36.  So  held  on  appeal 
from  court  of  claims.  Hall  v.  State,  92  App.  Div.  96,  100,  87  N.  Y.  Supp. 
338;  Sayre  v.  State,  123  N.  Y.  291.  Where  there  is  a  mere  error  in  a 
matter  of  figures  and  a  new  trial  will  not  change  the  result,  a  judg- 
ment may  be  modified  by  increasing  the  amount  of  the  recovery.  Gold- 
stein v.  Greenberg,  18  Misc.  61,  41  N.  Y.  Supp.  21;  Golde  v.  Whipple  & 
Co.,  7  App.  Div.  48,  39  N.  Y.  Supp.  964;  Tolchinsky  v.  Schiff,  93  N.  Y. 
1073. 

-o  Amherst  College  v.  Ritch,  151  N.  Y.  282;  Volkening  v.  De  Graaf, 
81  N.  Y.  268;  McGinnis  v.  City  of  New  York,  6  Daly,  416. 

TiRiker  v.  Curtis,  10  Misc.  125,  30  N.  Y.  Supp.  940;  Storrs  v.  Flint, 
46  Super.  Ct.  (14  J.  &  S.)  498. 

72Listman  v.  Hickey,  65  Hun,  8;  Meyer  v.  Fiegel,  34  How.  Pr.  434; 
Flaherty  v.  Greenman,  7  Daly,  481;  Johnson  v.  City  of  Albany,  86  App. 
Div.  567,  572,  83  N.  Y.  Supp.  1002. 

™  Harris  v.  Tumbridge,  83  N.  Y.  92. 

™  Fallon  v.  Lawler,  102  N.  Y.  228;  Foote  v.  Roberts,  30  Super.  Ct.  (7 
Rob.)  17;  Poillon  v.  Volkenning,  11  Hun,  385;  Smith  v.  Wetmore,  41 
App.  Div.  290,  58  N.  Y.  Supp.  402. 

T5  Howell  v.  Grand  Trunk  R.  Co.,  92  Hun,  423,  36  N.  Y.  Supp.  541. 

7"  Smith  v.  City  of  Auburn,  88  App.  Div.  396,  400,  84  N.  Y.  Supp.  725. 

77  Hodges  v.  Friedheim,  25  App.  Div.  608,  49  N.  Y.  Supp.  529. 


3908  RELIEF  GRANTED  ON  APPEAL.  §  2826 

Art.    I.     General  Rules. — Allowing?  Amendments. 

be  made  and  the  necessary  amendment  allowed  by  the  ap- 
pellate division.78 

An  amendment  cannot  be  allowed  in  the  appellate  court  to 
se1  up  the  statute  of  limitations  in  order  to  support  the  judg- 
ment,70 nor  can  an  amendment  be  allowed  where  it  would  re- 
quire additional  parties  to  be  brought  in,80  nor  can  an  amend- 
ment as  to  parties  be  allowed  where  it  would  change  the  whole 
theory  of  the  action.81 

Accidental  mistakes  in  a  finding  of  fact  by  the  trial  court 
may  be  corrected  by  the  appellate  court.82 

An  omission  in  the  order  appealed  from  cannot  ordinarily 
be  supplied,83  though  the  appellate  division  may  amend  its  order 
of  reversal  nunc  pro  tunc  to  show  whether  the  reversal  was 
on  cpiestions  of  law  or  fact,  after  an  appeal  to  the  court  of 
appeals.84 

§  2825.     Where  both  parties  appeal. 

Where  both  parties  separately  appeal  from  a  judgment  in 
favor  of  plaintiff,  there  should  be  but  one  disposition  of  the 
case,  and  if  the  court  finds  prejudicial  error  it  should  either 
reverse  the  judgment  and  direct  a  new  trial  or  order  a  modifi- 
cation. The  appellate  court  has  no  power  to  affirm  the  judg- 
ment as  to  plaintiff  and  reverse  it  as  to  the  defendant  and 
order  a  new  trial.85 

§  2826.    Incidental  relief  to  unsuccessful  party. 

Incidental  relief  is  sometimes  granted  to  the  unsuccessful 
party,  as  by  allowing  him  to  sever  his  action.80 

T8  Earle  v.  Gorham  Mfg.  Co.,  2  App.  Div.  460,  37  N.  Y.  Supp.  1037. 

"9  Williams  v.  Willis,  15  Abb.  Pr.  (N.  S.)  11;  Dezengremel  v.  Dezen- 
gremel,  24  Hun,  457. 

so  Easterly  v.  Barber,  66  N.  Y.  433. 

si  Bassett  v.  Fish,  75  N.  Y.  303. 

82  Robert  v.  Corning,  23  Hun,  299. 

ss  Cleary  v.  Christie,  41  Hun,  566. 

»<  Judson  v.  Central  V.  R.  Co.,  158  N.  Y.  597, 

85  National  Board  of  Marine  Underwriters  v.  National  Bank  of  Re- 
public, 146  N.  Y.  64. 

sc  Roehr  v.  Liebmann,  9  App.  Div.  247,  41  N.  Y.  Supp.  489. 


§  2827  RELIEF  GRANTED  ON  APPEAL.  3909 


Art.  I.     General  Rules. 


§  2827.     Restitution. 

The  Code  provides  quite  fully  for  restitution  in  particular 
instances  after  the  vacation  or  reversal  of  a  judgment  or 
order,87  The  Code  provision  as  to  restitution  on  appeals  in 
general  is  as  follows:  "When  a  final  judgment  or  order  is 
reversed  or  modified,  upon  appeal,  the  appellate  court,  or  the 
general  term  of  the  same  court,  as  the  case  may  be,  may  make 
or  compel  restitution  of  property,  or  of  a  right,  lost  by  means 
of  the  erroneous  judgment  or  order;  but  not  so  as  to  affect 
the  title  of  a  purchaser  in  good  faith  and  for  value.  When 
property  has  been  sold,  the  court  may  compel  the  value,  or 
the  purchase  price,  to  be  restored,  or  deposited  to  abide  the 
event  of  the  action,  as  justice  requires. ' ' 88  The  phrase  ' '  or 
the  general  term  of  the  same  court"  has  no  application,  it 
seems,  since  the  abolition  of  the  general  term  of  the  city  court 
of  New  York.80 

Restitution  was  a  remedy  well  known  to  the  common  law. 
Its  object  was  to  restore  to  an  appellant  the  specific  thing,  or 
its  equivalent,  of  which  he  had  been  deprived  by  the  enforce- 
ment of  the  judgment  against  him  during  his  appeal.  It  was 
not  created  by  statute  but  was  exercised  by  the  appellate  court 
as  an  inherent  power.  It  was  usually  provided  for  in  the 
order  of  reversal  by  directing  "that  the  defendant  be  restored 
to  all  things  which  he  has  lost  on  occasion  of  the  judgment 
aforesaid. ' ' 00 

It  will  be  noticed  that  restitution  will  not  be  ordered  so  as  to 
affect  the  title  of  a  bona  fide  purchaser  for  value.  If  the 
property  sold  has  been  bought  in  for  the  benefit  of  the  judg- 
ment creditor,  by  a  trustee,  the  latter  is  not  a  bona  fide  pur- 
chaser so  as  to  preclude  restitution  on  motion.91 

87  Restitution  may  be  ordered  on  granting  of  a  new  trial  by  the  lower 
court.  Code  Civ.  Proc.  §  1005.  Undertaking  for  restitution  where  judg- 
ment by  default  after  service  by  publication,  see  Code  Civ.  Proc.  §  1216. 
On  setting  aside  judgment,  Code  Civ.  Proc.  §  2142.  Restitution  in  sum- 
mary proceedings,  Code  Civ.  Proc.  §  2263.     See,  also,  vol.  1,  p.  782. 

88  Code  Civ.  Proc.  §  1323. 

8"  See  Carlson  v.  Winterson,  146  N.  Y.  345. 
ooHaebler  v.  Meyers,  132  N.  Y.  363,  28  Abb.  N.  C.  175. 
«  Murray  v.  Berdell,  98  N.  Y.  480. 


3910  RELIEF  GRANTED  ON  APPEAL.  §  '2827 

Art.   1.      General   Rules. — Restitution. 

Power  of  appellate  court  as  exclusive.    The  remedies  by 


motion  in  the  appellate  court  and  by  an  independent  action 
are  concurrent.02  The  motion  may  be  denied  without  prejudice 
to  the  right  to  bring  an  action.1'3  The  Code  provision  does 
not  negative  the  authority  of  the  court,  at  special  term,  to 
grant  the  same  relief.94  If  there  is  a  dispute  with  respect  to 
the  identity  of  the  property,  the  moving  party  should  be  left 
to  his  remedy  by  action.95 

Order  as  discretionary.     The  granting  of  the  motion 

is  said  to  rest  in  the  discretion  of  the  court 9G  which  may  remit 
the  party  to  his  action.97  Other  cases  hold  that  where  the 
judgment  is  not  reversed  on  the  merits,  restitution  should  not 
be  ordered  as  a  matter  of  course,98  but  where  no  new  trial  is 
awarded  the  appellate  court  "must"  order  restitution.99  So 
it  has  been  held  that  where  a  judgment  for  plaintiff  in  eject- 
ment is  reversed  and  a  new  trial  ordered,  restitution  will  be 
ordered  as  of  course.100 

Propriety  of  granting.     Restitution  will  not  be  ordered 

where  the  reversal  is  on  the  ground  of  irregularities,  and  re- 
spondent should  again  prevail  in  regularly  conducted  pro- 
ceedings.101    That  a  new  trial  has  been  ordered  does  not  neces- 

82  Haebler  v.  Myers,  132  N.  Y.  363.  Action  lies  to  recover  moneys 
paid.     Garr  v.  Martin,  20  N.  Y.  306;  Scholey  v.  Halsey,  72  N.  Y.  578. 

ss  See  Wright  v.  Nostrand,  100  N.  Y.  616.  Form  of  complaint  in 
action  for  restitution,  see  28  Abb.  N.  C.  175. 

9*  Piatt  v.  Withington,  25  Abb.  N.  C.  103,  11  N.  Y.  Supp.  824.  Contra, 
Hayes  v.  Nourse,  25  Abb.  N.  C.  95,  11  N.  Y.  Supp.  825. 

95  Shapiro  v.  Goldberg,  31  Misc.  787,  65  N.  Y.  Supp.  312. 

96  Kroner  v.  Reilly,  52  App.  Div.  624,  65  N.  Y.  Supp.  1137;  Merriam  v. 
Wood  &  Parker  L.  Co.,  155  N.  Y.  136. 

9<  Lott  v.  Swezey,  29  Barb.  87.  The  court  may  deny  the  motion  on 
account  of  delay  and  leave  the  moving  party  to  his  action  to  recover 
the  money.  Market  Nat.  Bank  v.  Pacific  Nat.  Bank,  102  N.  Y.  464;  Carl- 
son v.  Winterson,  7  Misc.  689,  28  N.  Y.  Supp.  20. 

98  Carlson  v.  Winterson,  7  Misc.  15,  27  N.  Y.  Supp.  368. 

99  Estus  v.  Baldwin,  9  How.  Proc.  80. 

iooCostar  v.  Peters,  4  Abb.  Pr.  (N.  S.)  53;  Martin  v.  Rector,  28  Hun, 
409. 

ioi  People  v.  Hamilton,  15  Abb.  Pr.  328. 


§  2S27 


RELIEF  GRANTED  ON  APPEAL.  3911 


Art.   I.     General   Rules. — Restitution. 


sarilv  preclude  an  order  for  restitution,102  but  restitution  will 
generally  not  be  ordered  where  a  new  trial  is  granted  but 
appellant's  success  on  the  new  trial  is  quite  doubtful.103 

The  court  cannot,  after  reversal,  direct  the  restoration  of 
money  which  was  not  paid  under  the  order  reversed  but  on 
the  evident  responsibility  of  the  person  making  the  payment.104 
Restitution  of  a  pro  rata  amount  paid  for  a  liquor  tax  certifi- 
cate will  be  ordered  on  reversing  an  order  directing  its  issu- 
ance.105 Where  a  final  order  in  summary  proceedings  against 
a  tenant  is  reversed  on  appeal  for  a  jurisdictional  defect,  the 
order  for  reversal  should  provide  for  the  restitution  of  the 
tenant ; 10G  but  a  restitution  of  premises  in  the  actual  possession 
of  a  tenant  who  is  not  a  party  to  the  action  cannot  be 
ordered.107  On  reversing  a  judgment  in  quo  warranto  pro- 
ceedings removing  defendant  from  office,  it  is  proper  to  compel 
restitution  of  rights  lost  by  means  of  the  erroneous  judg- 
ment.108 Where  a  sheriff  collected  a  sum  under  an  attachment 
which  was  subsequently  vacated  on  motion  of  subsequent 
lienors  to  whom  the  money  was  paid  by  the  sheriff,  and  there- 
after the  order  vacating  the  attachment  was  reversed,  the  at- 
taching creditor,  who  had  in  the  meantime  obtained  judg- 
ment and  issued  execution  which  was  returned  nulla  bona  may 
sue  to  recover  said  moneys  as  for  money  had  and  received.109 

The  court  may,  where  a  new  trial  is  granted,  direct  a  pay- 
ment into  court  of  the  moneys  paid  on  the  reversed  judgment 
instead  of  ordering  payment  back  to  appellant.110 

The  right  to  a  reinstatement  of  a  remedy  the  order  grant- 


102  Murray  v.  Berdell,  98  N.  Y.  480,  485. 

103  Young  v.  Brush,  18  Abb.  Pr.  171;   followed  in  People  v.  White,  5 
Month.  Law  Bui.  21. 

104  Gillig  v.  Treadwell  Co.,  151  N.  Y.  552. 

los  People  v.  Sackett,  15  App.  Div.  290,  44  N.  Y.  Supp.  593. 

io6  Bristed  v.  Harrell,  21  Misc.  93,  46  N.  Y.  Supp.  966. 

io7  Carter  v.  Anderson,  16  Daly,  437,  11  N.  Y.  Supp.  883. 

los  people  v.  Livingston,  80  N.  Y.  666. 

109  Haebler  v.  Myers,  132  N.  Y.  363. 

no  Marvin  v.  Brewster  Iron  Min.  Co.,  56  N.  Y.  671. 


3912  RELIEF  GRANTED  ON  APPEAL.  §  2«27 

Ait.   I.      General   Rules. — Restitution. 

ing  which  is  vacated  or  reversed  is  not  recognized.  A  stay 
on  appeal  does  not  suffice.1" 

Extent  of  relief  granted.     Restoration  to  possession  of 

land  is  not  a  complete  restitution.  Where  a  judgment  for 
plaintiff  in  a  creditor's  suit  to  reach  land  fraudulently  con- 
veyed was  reversed  after  a  sale  under  the  judgment  and  the 
bidding  in  of  the  property  by  plaintiff,  the  appellate  court 
properly  ordered  restitution  of  the  real  estate  sold  and  the 
value  of  the  rents  and  profits  during  the  time  plaintiff  had 
been  in  possession,  less  the  amount  necessarily  paid  out  by 
him  in  connection  with  his  possession  of  the  property.  The 
restitution  should  not  be  limited  to  the  rents  actually  re- 
ceived.112 After  possession  is  given  up,  however,  the  special 
term  may  direct  a  cancellation  of  the  satisfaction  of  the  judg- 
ment on  which  the  creditor's  suit  was  based  though  the  rents 
and  profits  have  not  been  restored.11" 

On  awarding  a  repayment,  interest  thereon  may  be  added 
from  the  date  of  payment.114 

The  court  has  power  only  to  restore  in  a  summary  manner 
the  property  lost  by  the  particular  judgment  reversed.115 

Motion.  It  seems  that  a  judgment  for  restitution  can- 
not be  entered  without  leave.110  If  the  court  does  not,  of  its 
own  motion,  make  any  provision  for  restitution  in  its  opinion 
handed  down  on  reversing  or  modifying  the  judgment  or 
order  appealed  from,  the  prevailing  party  may,  on  notice,  move 
on  affidavits  for  an  order  directing  restitution.  The  motion 
should  be  made  in  the  appellate  court,  except  that  where  a 
judgment  is  set  aside  by  the  appellate  division  and  the  order 
of  the  appellate  division  is  affirmed  by  the  court  of  appeals, 

in  Note  in  24  Abb.  N.  C.  239. 

112  Wallace  v.  Berdell,  101  N.  Y.  13. 

n3  Wallace  v.  Berdell.  105  N.  Y.   7. 

n4  Piatt  v.  Withington,  25  Abb.  N.  C.  103,  11  N.  Y.  Supp.  824. 

us  The  court  cannot  interfere  summarily  to  restore  property  taken 
under  other  judgments,  even  though  the  effect  of  the  reversal  is  to 
decide  that  the  property  was  taken  from  the  party  legally  entitled  to  it. 
Murray  v.  Berdell,  98  N.  Y.  480. 

ne  Martin  v.  Rector,  28  Hun,  409. 


§  2S2S  RELIEF  GRANTED  ON  APPEAL.  :;<»13 

Art.   I.      General   Rules. — Restitution. 

the  motion  should  be  made  at  the  appellate  division.117  A  de- 
mand is  not  necessary  before  moving  for  restitution."'  A 
judgment  of  restitution  should  not  be  entered  without  notice 
to  the  party  to  be  affected  by  the  order,  where  it  has  not  been 
directed  by  the  appellate  court  in  the  remittitur.110  Where  an 
order  has  been  complied  with  by  payment,  the  appellate  court, 
in  modifying  the  order  by  reducing  the  amount  to  be  paid,  will 
not,  sua  sponte,  direct  restitution  of  the  excess  Avhere  the  pro- 
priety thereof  depends  on  facts  outside  the  record.120 

Enforcement  of  order.     In  case  of  inability  to  comply 

with  the  order,  it  seems  that  the  party  may  be  relieved  there- 
from.121 The  order  for  the  restitution  of  money  is  enforcible 
by  execution  and  not  by  contempt  proceedings,  where  it  is  di- 
rected to  be  paid  to  a  party  to  the  action,122  though  contempt 
proceedings  lie  in  case  of  disobedience  to  the  order  where  the 
money  is  directed  to  be  paid  into  the  custody  of  the  court.123 

Appeal  from  order.     There  is  some  doubt  as  to  whether 

the  order  is  in  a  special  proceeding  though  it  would  seem  that  it 
is  an  order  in  the  action  so  as  not  to  be  appealable  as  of  right 
to  the  court  of  appeals.124  At  any  event,  it  is  not  reviewable 
in  the  court  of  appeals  in  so  far  as  it  is  discretionary.125 

§  2828.     Enforcement  of  judgment  affirmed. 

"Where  a  judgment,  from  which  an  appeal  has  been  taken, 
from  one  court  to  another,  is  wholly  or  partly  affirmed,  or  is 
modified,  upon  the  appeal,  it  must  be  enforced  by  the  court  in 
which  it  was  rendered,  to  the  extent  permitted  by  the  deter- 
mination of  the  appellate  court,  as  if  the  appeal  therefrom  had 
not  been  taken. ' ' 126     It  will  be  observed  that  this  Code  pro- 

ii"  Market  Nat.  Bank  v.  Pacific  Nat.  Bank,  102  N.  Y.  464. 

us  Marshall  v.  Macy,  10  Abb.  N.  C.  877. 

us  Young  v.  Brush,  18  Abb.  Pr.  171. 

i2oTjhlman  v.  Uhlman,  51  Super.  Ct.  (19  J.  &  S.)  361. 

121  Devlin  v.  Hinman,  40  App.  Div.  101,  10S,  57  N.  Y.  Supp.  663. 

122  O'Gara  v.  Kearney,  77  N.  Y.  423. 

12::  Devlin  v.  Hinman,  40  App.  Div.  101,  57  N.  Y.  Supp.  663.    Followed 
in  Kroner  v.  Reilly,  52  App.  Div.  624,  65  N.  Y.  Supp.  624. 
124,  125  Merriam  v.  Wood  &  P.  L.  Co.,  155  N.  Y.  136. 
128  Code  Civ.  Proc.  §  1319.     This  section  does  not  apply  to  appeals 


3914  RELIEF  GRANTED  ON  APPEAL.  §  2830 


Art.  I.     General  Rules. 


vision  applies  where  the  appeal  is  "from  one  court  to  another." 
The  order  of  the  appellate  court  cannot  be  questioned  at  the 
speciai  term  on  an  application  for  its  enforcement.127 

The  lower  court  cannot  vacate128  or  amend129  its  judgment 
or  order  after  its  affirmance  on  appeal,  except  by  consent,130 
or  unless  the  affirmance  is  expressly  stated  to  be  without 
prejudice  to  the  making  of  such  an  application.131 

Motion  for  new  trial  after  affirmance.     In  some  cases, 

a  motion  for  a  new  trial  may  be  granted  at  special  term  after 
the  judgment  has  been  affirmed  on  appeal.132 

§  2829.     Noting  reversal  or  modification  of  money  judgment 
on  docket  book. 

The  duty  of  the  clerk  of  the  lower  court  to  make  a  minute 
on  his  docket  book  of  the  reversal  or  modification  of  a  money 
judgment,  after  the  determination  by  the  appellate  division 
(Code  Civ.  Proc.  §  1321),  or  after  the  filing  of  the  remittitur  of 
the  court  of  appeals  (Code  Civ.  Proc.  §  1322),  has  been  set 
forth  in  volume  three  of  this  work.133 

§  2830.     Effect  of  reversal. 

The  effect  of  a  reversal  of  a  judgment  for  defendant,  as 
reinstating  an  attachment,  has  already  been  considered,134  as 
has  the  effect  of  a  reversal  of  the  order  setting  aside  an  attach- 
ment.135   So  the  effect  of  a  reversal  of  the  judgment  on  an  ex- 

from  a  justice  court  to  the  county  court.  Ryan  v.  Parr,  40  State  Rep. 
946. 

127  Matter  of  Murray's  Estate,  6  App.  Div.  376.  39  N.  Y.  Supp.  579. 

128  Village  of  Herkimer  v.  New  York  Cent.  &  H.  R.  R.  Co.,  29  App. 
Div.  69,  51  N.  Y.  Supp.  390. 

129  Meldon  v.  Devlin,  39  App.  Div.  581,  57  N.  Y.  Supp.  670. 
isoTJtica  Ins.  Co.  v.  Lynch,  2  Barb.  Ch.  573. 

isi  Lyon  v.  Merritt,  6  Paige,  473. 

132  See  vol.  3,  pp.  2730,  2731. 

133  Vol.  3,  p.  2806. 

134  Vol.  2,  p.  1529. 

135  Vol.  2,  p.  1528. 


§  2831  RELIEF  GRANTED  ON  APPEAL.  3915 


Art.  I.     General  Rules. 


ecution  sale  has  been  stated.135a  A  reversal  of  an  order  deny- 
ing a  motion  to  to  set  aside  a  stay  of  proceedings  does  not,  with- 
out an  order  to  that  effect,  set  them  aside.130  The  reversal  of 
an  order  invalidates  a  judgment  entered  in  pursuance  thereof.137 

§  2831.     New  trial. 

A  new  trial  having  been  granted  by  the  appellate  court,  and 
the  order  of  reversal  having  been  entered  in  the  lower  court, 
either  party  may  give  a  new  notice  of  trial.  In  some  of  the 
counties  a  new  notice  is  not  necessary  and  either  party  may 
have  the  cause  put  on  the  calendar.138 

Mode   of  trial.     If  the  right  to  a  trial  by  jury  was 

waived  on  the  first  trial,  a  jury  trial  cannot  be  demanded  on 
the  second  trial.139 

Amendment  of  pleadings.     If  the  complaint  is  amended 

on  the  trial,  a  subsequent  reversal  of  the  judgment  there 
rendered  does  not,  in  the  absence  of  a  direction  to  that  effect, 
reverse  the  order  granting  the  amendment,  and  a  new  trial  is 
to  be  had  on  the  pleadings  as  amended.140  An  amendment  of 
the  pleadings  may  be  allowed,141  but  if  the  reversal  was  with 
costs  to  abide  the  event  the  allowance  of  the  amendment  should 
be  conditioned  on  the  payment  of  the  costs  of  the  action  sub- 
sequent to  the  service  of  the  original  pleading  and  the  costs 

135a  Vol.  3,  p.  3133. 

136  Miller  v.  Adams,  7  Lans.  131. 

137  Raff  v.  Koster,  Bial  &  Co.,  38  App.  Div.  336,  56  N.  Y.  Supp.  997. 
Rule  applied  to  reversal  of  order  setting  aside  a  default.  Weinberg  v. 
Frank,  25  Misc.  788,  56  X.  Y.  Supp.  920;  Cahill  v.  Lilienthal,  30  Misc. 
429,  62  N.  Y.  Supp.  524;  Lerner  v.  Wagner,  36  Misc.  833,  74  N.  Y. 
Supp.  851. 

138  Vol.  2,  p.  1663. 

139  Tr^cy  v.  Falvey,  102  App.  Div.  585,  92  N.  Y.  Supp.  625. 

140  Price  v.  Brown,  112  N.  Y.  677. 

141  Alexander  Lumber  Co.  v.  Abrahams  20  Misc.  674,  46  N.  Y.  Supp. 
538;  Heine  v.  Rohner,  33  App.  Div.  633,  53  N.  Y.  Supp.  464;  Rodgers  v. 
Clement,  58  App.  Div.  54,  68  N.  Y.  Supp.  594;  Tradesmen's  Nat.  Bank 
v.  Curtis,  63  App.  Div.  14,  71  N.  Y.  Supp.  414.  Dictum  of  appellate 
court  is  sufficient  as  basis  of  amendment  to  conform  thereto.  Mont- 
gomery v.  Boyd,  63  App.  Div.  190,  71  N.  Y.  Supp.  264. 


;-,in;  RELIEF  GRANTED  ON  APPEAL.  §  2831 


Art.   I.     General  Rules. — New  Trial. 


of  the  appeal.1*2  Payment  of  costs  after  the  service  of  the 
notice  of  trial,  including  the  costs  of  the  appeal,  lias  been  re- 
quired on  allowing  defendant  to  amend  his  answer  so  as  to 
deny  an  allegation,  the  failure  to  deny  which  was  the  ground 
of  reversal,  though  no  costs  were  imposed  on  either  party  on 
the  appeal.1'"'  Where  defendant  prevails  in  the  court  of  ap- 
peals on  a  question  as  to  necessary  parties,  and  a  new  trial 
is  granted  "with  costs  to  abide  the  event,"  and  thereafter 
plaintiff  moves  to  amend  by  bringing  in  other  persons  as 
parties,  it  is  improper,  on  granting  such  motion,  to  impose 
only  motion  costs.144  in  the  absence  of  facts  showing  an  ex- 
cuse for  the  delay  in  moving,  a  motion  to  amend  the  answer, 
after  a  trial  and  reversal,  by  denying  an  allegation  of  the  com- 
plaint admitted  by  the  original  answer,  will  not  be  granted.145 

Evidence.     The  admissibility   of  evidence  on  the  new 

trial  is  not  affected  by  the  reversal  except  in  so  far  as  the  rules 
of  law  laid  down  in  the  opinion  of  the  appellate  court  apply 
thereto.  If  the  appellate  court  has  determined  that  certain 
facts  do  not  constitute  a  defense,  proof  of  such  facts  should 
be  excluded.140  The  appellate  court  cannot  direct,  where  the 
reversal  is  for  error  on  the  trial,  that  on  the  new  trial  the  testi- 
mony taken  on  the  first  trial  may  be  read  from  the  minutes, 
since  in  such  a  case  the  appellant  has  a  right  to  a  new  trial 
without  condition  or  qualification.147 

Law  of  the  case.     The  decision  rendered  on  appeal  is 

the  law  of  the  case  on  a  retrial  thereof,148  at  least  in  so  far  as 

1*2  Amendment  of  complaint,  Diehl  v.  Dreyer,  103  App.  Div.  590,  93  N. 
Y.  Supp.  151;  McEntyre  v.  Tucker,  40  App.  Div.  444,  58  N.  Y.  Supp.  14G; 
Fox  v.  Davidson,  40  App.  Div.  G20,  58  N.  Y.  Supp.  147. 

143  Rodgers  v.  Clement,  58  App.  Div.  54,  68  N.  Y.  Supp.  594.  See,  also, 
Tradesmen's  Nat.  Bank  v.  Curtis,  63  App.  Div.  14,  71  N.  Y.  Supp.  414. 

144  Steinbach  v.  Prudential  Ins.  Co.,  92  App.  Div.  440,  88  N.  Y.  Supp. 
117.  In  this  case,  fifty  dollars  was  imposed,  as  the  condition,  by  the 
appellate  division,  but  the  better  practice  seems  to  be  laid  down  in  the 
dissenting  opinions  of  Van  Brunt,  P.  J.,  and  Ingraham,  J. 

145  Treadwell  v.  Clark,  45  Misc.  268,  92  N.  Y.  Supp.  166. 

146  Waterman  v.  Shipman,  47  State  Rep.  418. 

147  Bruce  v.  Davenport,  3  Keyes,  472. 

148  Hall  v.   State,  92  App.  Div.   96,  87  N.  Y.   Supp.   338;    Pearsall  v. 


§  2S32  RELIEF  GRANTED  ON  APPEAL.  3917 


Art.  I.     Geneva!  Rules. — New  Trial. 


the  evidence  is  the  same.149  Where  the  case  is  sent  back  for  a 
new  trial,  nothing  said  in  the  appellate  court  should  control 
the  jury  in  their  decision  on  the  facts,  especially  where  new 
evidence  is  produced.150  The  lower  court  should  be  governed 
by  the  principles  laid  down  in  the  decision  of  the  appellate 
court,  though  such  principles  may  not  have  been  drawn  in 
question  by  the  appeal,  if  they  were  stated  with  a  view  to 
guiding  the  further  proceedings.151  Questions  appearing  on 
the  face  of  the  record,  which  the  court  of  appeals,  in  its  re- 
versal of  the  judgment  appealed  from,  does  not  pass  on,  but 
which,  if  they  had  substance,  would  lead  to  an  affirmance, 
must  be  regarded,  on  the  new  trial  ordered  by  the  court,  as 
of  no  substance.152  When  the  court  of  appeals  affirms  with- 
out an  opinion,  but  without  formally  adopting  the  opinion  be- 
low, it  is  not  to  be  understood  that  the  affirmance  is  on  grounds 
substantially  different  from  those  taken  below.  The  case  can- 
not be  taken  from  the  jury  where  the  appellate  court  has  de- 
cided on  a  former  appeal  that  an  issue  of  fact  was  raised  by 
the  evidence,  and  the  evidence  on  the  new  trial  is  practically 
the  same.153 

§  2832.     New  hearing  of  motion  in  the  lower  court. 

The  granting  of  leave  by  the  appellate  court  to  apply  to  the 
lower  court  for  specified  relief  is  no  indication  that  such  relief 

Westcott,  45  App.  Div.  34,  60  N.  Y.  Supp.  816;  Bueb  v.  Geraty,  32  Misc. 
720,  66  N.  Y.  Supp.  285;  Buker  v.  Leighton  Lea  Ass'n,  63  App.  Div.  507, 
71  N.  Y.  Supp.  610.  That  law  laid  down  on  appeal  is  not  the  law  of  the 
case  in  the  trial  court  when  the  decision  is  plainly  erroneous  as  to  the 
facts  in  the  case,  see  Reynolds  v.  Davis,  7  Super.  Ct.  (5  Sandf.)  267. 

i«  Thames  Loan  &  T.  Co.  v.  Hagemeyer,  38  App.  Div.  449,  56  N.  Y. 
Supp.  689. 

iso  Moore  v.  American  Loan  &  T.  Co.,  38  State  Rep.  1002. 

i5i  Huttemeier  v.  Albro,  15  Super.  Ct.   (2  Bosw.)   546. 

isawehle  v.  Conner,  45  Super.  Ct.  (13  J.  &  S.)  598;  Higgins  v.  Crich- 
ton,  98  N.  Y.  626. 

issBathrick  v.  Coffin,  28  App.  Div.  624,  50  N.  Y.  Supp.  894;  Morman 
v.  Rochester  Mach.  Screw  Co.,  53  App.  Div.  497,  65  N.  Y.  Supp.  967; 
Marshall  v.  City  of  Buffalo,  63  App.  Div.  603,  71  N.  Y.  Supp.  719. 


3918  RELIEF  GRANTED  ON  APPEAL.  ^*  0333 

Art.  II.     Appeals  to  Court  of  Appeals. 

should  be  granted.104  On  reversal  of  an  order  where  the  mo- 
tion is  remitted  for  a  hearing  on  the  merits,  new  affidavits  may 
tic  read.3 ' 


ART.  II.  APPEAL  TO  THE  COURT  OF  APPEALS. 

§  2833.    Judgment. 

In  any  action  in  which  an  appeal  has  been  taken  to  the  court 
of  appeals,  the  court  may  in  its  discretion,  either  modity  or 
affirm  the  judgment  or  order  appealed  from,  award  a  new  trial, 
or  grant  to  either  party  such  judgment  as  that  party  may  be 
entitled  to.15G  This  Code  provision  means  such  judgment  as  a 
party  may  be  entitled  to  on  the  "facts  found."157  The  court 
of  appeals  has  the  power  to  render  the  judgment  the  appellate 
division  should  have  rendered.  What  has  already  been  said  158 
as  to  the  disposition  of  appeals  in  general  applies  equally  well 
to  appeals  to  the  court  of  appeals,  except  where  a  stipulation 
for  judgment  absolute  has  been  given. 

On  stipulation  for  judgment  absolute.     If  the  appeal  is 

from  an  order  granting  a  new  trial  on  exceptions  and  the  order 
is  affirmed,  the  court  of  appeals  "must  render  judgment  abso- 
lute on  the  right  of  the  appellant, ' '  as  authorized  by  the  stipu- 
lation for  judgment  absolute.150  The  statute  is  mandatory  and 
leaves  the  court  no  alternative  on  affirmance  but  to  order  judg- 
ment absolute  against  the  appellant,100  though  the  court  can 
see  that  the  appellant  was  entitled  to  part  of  the  relief  granted 

154  Cratlos  v.  Metropolitan  St.  R.  Co.,  67  App.  Div.  459,  73  N.  Y.  Supp. 
981. 

155  Sinnit  v.  Cambridge  Val.  A.  S.  &  S.  Ass'n,  27  Misc.  586,  58  N.  Y. 
Supp.  238. 

156  Code  Civ.  Proc.  §  1337. 

i57Farleigh  v.  Cadman,  159  N.  Y.   169,  175. 

158  Ante,  §§  2815-2832. 

159  Code  Civ.  Proc.  §  194. 

160  Bank  of  China  v.  Morse,  168  N.  Y.  458,  482;  Monitor  Milk  Pan  Co. 
v.  Remington,  109  N.  Y.  143.  Judgment  must  be  entered  in  favor  of  the 
successful  party  on  all  the  issues  in  the  action.  Wilson  v.  Palmer,  11 
Hun,  325. 


ft  2833  RELIEF  GRANTED  ON  APPEAL.  3919 

Art.  II.     Appeals  to  Court  of  Appeals. 


by  the  judgment,161  except  that  the  stipulation  does  not  pre- 
vent the  court  of  appeals  from  awarding  a  judgment  of  modi- 
fication and  affirmance  which  should  have  been  rendered  by 
the  appellate  division  instead  of  reversing.162  It  is  only  where 
the  error  which  might  have  justified  a  reversal  of  the  judg- 
ment was  merely  incidental  and  capable  of  accurate  correction, 
so  that  the  judgment  should  have  been  corrected  below  without 
awarding  a  new  trial,  that  the  court  of  appeals  may  modify 
the  judgment  by  correcting  the  error.  If  the  order  is  affirmed, 
the  judgment  must  be  absolute  against  the  appellants  on  the 
whole  matter  and  right  in  controversy  in  the  action.163  Where 
the  plaintiff  appeals  from  an  order  granting  a  new  trial  on  ex- 
ceptions and  the  order  is  affirmed,  the  defendants  are  entitled 
to  a  judgment  on  their  counter-claim.164  But  where  defendant 
appeals  and  stipulates  for  judgment  absolute,  and  the  order 
granting  a  new  trial  is  affirmed,  the  defendant  is  not  entitled, 
in  the  lower  court,  to  affirmative  relief  on  his  counterclaim.165 

The  ordering  part  of  the  order  of  affirmance  is  as  follows: 
"Order  and  adjudge  that  the  order  of  the  appellate  division 
of  the  supreme  court  appealed  from  herein  to  this  court  be, 
and  the  same  is,  hereby  affirmed,  and  judgment  absolute 
ordered  against  the  defendant,  on  the  stipulation  [with 
costs]." 

On  appeal  from  order  granting  a  new  trial  on  the  facts. 

Usually  the  appeal  is  dismissed  but  sometimes  it  is  deemed 
better  to  affirm  and  grant  judgment  absolute.100 

lei  Conklin  v.  Snider,  104  N.  Y.  641.  So  held  where  the  evidence 
justified  a  recovery  of  a  less  sum  than  the  whole  amount  recovered. 
Gray  v.  Tompkins  County  Sup'rs,  92  N.  Y.  603. 

162  Freel  v.  Queens  County,  154  N.  Y.  661.  See,  also,  Goodsell  v. 
Western  Union  Tel.  Co.,  109  N.  Y.  147. 

163  Godfrey  v.  Moser,  66  N.  Y.  250;  Hiscock  v.  Harris,  80  N.  Y.  402; 
Wilber  v.  Sisson,  54  N.  Y.  121. 

164  Hiscock  v.  Harris,  80  N.  Y.  402.  This  rule  does  not  apply,  how- 
ever, where  a  counterclaim  is  unauthorized.  People  v.  Dennison,  84 
N.  Y.  272. 

165  Rust  v.  Hauselt,  8  Abb.  N.  C.  148. 

is"  See  ante  c.  15.  Affirmance,  see  Boyle  v.  New  York,  L.  E.  &  W. 
R.  Co.,  115  N.  Y.  636. 


3920  RELIEF  GRANTED  ON  APPEAL.  §  2834 

Art.    II.      Appeals   to   Court  of  Appeals. 

§  2834.     Remittitur. 

The  judgment  or  order  of  the  court  of  appeals  must  be  re- 
mitted to  the  court  below,  to  be  enforced  according  to  law.167 
A  remittitur  is  necessary  whenever  any  order  is  made  which 
finally  disposes  of  the  appeal,  though  it  may  not  be  an  order 
on  the  merits.108  It  follows  that  a  remittitur  is  necessary  even 
when  the  appeal  is  dismissed.100  Where  an  appeal  has  been 
determined  in  the  court  of  appeals,  the  remittitur  is  filed  and 
an  ex  parte  motion  made  that  the  judgment  of  the  court  of 
appeals  be  made  the  judgment  of  the  supreme,  or  other,  court 
where  the  judgment  was  originally  entered.  When  this  mo- 
tion is  granted  and  the  judgment  entered  in  the  lower  court, 
the  lower  court  may  proceed  to  enforce  the  judgment  so  entered 
or,  if  a  new  trial  was  granted,  may  proceed  to  a  new  trial. 

Form   and    contents.     The    remittitur    shall    contain   a 

copy  of  the  judgment  of  the  court  of  appeals  and  the  return 
made  by  the  clerk  below,  and  shall  be  sealed  with  the  seal  and 
signed  by  the  clerk  of  the  court  of  appeals.170 

Filing.     The   remittitur   is   usually   sent   by   the   clerk 

of  the  court  of  appeals  to  the  attorney  for  the  successful  party 
who  moves  at  special  term  that  the  judgment  of  the  court  of 
appeals  be  made  the  judgment  of  the  lower  court.  It  would 
seem  the  better  practice  to  give  notice  of  the  filing  and  of  the 
motion.  The  order  is  granted  as  of  course.  The  fact  that  the 
clerk  takes  the  paper  into  his  hands  but  immediately  hands 
it  back  does  not  constitute  a  filing.171  The  cases  do  not  en- 
tirely agree  as  to  the  effect  of  a  failure  to  file  the  remittitur. 
On  the  one  hand,  it  is  held  that  after  a  remittitur  has  been 
issued  and  delivered  to  the  prevailing  party  the  lower  court 
has  jurisdiction  of  the  cause  so  that,  where  a  new  trial  has 
been  awarded,  it  may  proceed  with  the  trial,  though  the  re- 

"TCode  Civ.  Proc.  §  194.  Procedure  in  lower  court  after  remitting 
order  for  judgment  absolute,  see  vol.  3,  p.  2867. 

i'^  Dresser  v.  Brooks,  2  N.  Y.  (2  Comst.)  559. 

i«9  Dresser  v.  Brooks,  2  N.  Y.  (2  Comst.)  559;  McFarlan  v.  Watson,. 
4  How.  Pr.  128,  as  corrected  in  4  How.  Pr.  184. 

170  Rule  16  of  the  court  of  appeals. 

in  Cushman  v.  Hadfield,  15  Abb.  Pr.  (N.  S.)  109,  114. 


2834  RELIEF  GRANTED  ON  APPEAL.  3921 


Art.  II.     Appeals  to  Court  of  Appeals. — Remittitur. 


mittitur  has  not  been  filed; 172  and  that,  in  any  event,  failure 
to  file  the  remittitur  is  not  a  fatal  objection  to  proceedings  on 
a  new  trial  where  the  party  to  whom  it  was  delivered  to  be  filed 
does  not  raise  the  objection  until  the  trial  is  nearly  con- 
cluded.173 So  it  is  held  that  the  omission  to  enter  an  order 
making  the  judgment  of  the  court  of  appeals  that  of  the  su- 
preme court  is  a  formal  irregularity  which  the  court  can  at 
any  time  correct  by  directing  the  order  to  be  entered  nunc 
pro  tunc.174  On  the  other  hand,  it  is  held  that  an  order  or 
judgment  must  be  entered  in  the  lower  court,  on  filing  the  re- 
mittitur, before  execution  can  issue  or  other  proceedings  be 
taken  to  enforce  the  order  of  the  court  of  appeals  as  contained 
in  the  remittitur.175 

' '  When  a  judgment  or  order  is  affirmed  by  the  default  of  the 
appellant,  the  remittitur  shall  not  be  sent  to  the  court  below, 
unless  the  court  of  appeals  shall  otherwise  direct,  until  ten 
days  after  notice  of  the  affirmance  shall  have  been  served  on  the 
attorney  for  the  appellant.  Service  of  the  notice  shall  be 
proved  to  the  clerk  by  affidavit,  or  by  the  written  admission 
of  the  attorney  on  whom  it  was  served."  17G  The  object  of  this 
rule  is  to  give  the  appellant  time  to  make  the  application  to 
open  the  default,  before  the  filing  of  the  remittitur.177 

Staying  the  filing'.     Any  judge  of  the  court  of  appeals 

may  order  the  filing  of  a  remittitur  to  be  stayed,  in  whosoever- 
hands  it  may  be,  at  any  time  before  it  is  actually  filed  in  the- 
court  below,  though  the  motion  is  not  accompanied  by  motion 
papers  or  notice  of  motion.178  The  filing  is  often  stayed  where 
a  reargument  is  to  be  applied  for.170  The  supreme  court  will 
not  order  the  filing  of  the  remittitur  to  be  stayed  merely  be- 

172,  i-3  Judson  v.  Gray,  17  How.  Pr.  289. 

174  Chautauqua  County  Bank  v.  White,  23  N.  Y.  347. 

i"5  Seacord  v.  Morgan,  17  How.  Pr.  394.  Order  for  entry  must  be 
made  by  supreme  court.     Id. 

"6  Rule  17  of  the  court. of  appeals;  Lyme  v.  Ward,  1  N.  Y.  (1  Comst.) 
531. 

i"  Latson  v.  Wallace,  9  How.  Pr.  334. 

i-s  Cushman  v.  Hadfield,  15  Abb.  Pr.  (N.  S.)  109,  which  construes 
rule  16  of  the  court  of  appeals  as  inapplicable. 

i™  See  ante,  §  2761. 

N.  Y.   Prac— 246. 


3922  RELIEF  GRANTED  ON  APPEAL.  8  2S34 

Ai't.  II.     Appeals  to  Court  of  Appeals. —  Remittitur. 

cause  it  is  shown  that  a  reargument  is  to  be  applied  for,  and 
the  grounds,  bul  where  a  judge  of  the  court  of  appeals  has 
granted  an  order  to  show  cause  why  a  reargument  should  not 
be  had  and  directed  that  in  the  meantime  the  remittitur  be 
stayed  if  not  sent  down  the  court  below  may  stay  the  filing 
of  the  remittitur  pending  the  application  to  the  court  of  ap- 
peals.180 The  restriction  imposed  by  section  775  of  the  Code 
on  the  power  of  a  judge  out  of  court  to  stay  proceedings  for 
more  than  twenty  days,  except  on  notice,  does  not  apply  to  a 
stay  for  the  purpose  of  a  motion  for  reargument  of  an  ap- 
peal.181 

Judgment  or  order  entered  on.     The  judgment  or  order 

entered  on  a  remittitur  must  conform  strictly  to  the  remitti- 
tur,18- and  it  seems  that  it  cannot  afterwards  be  set  aside  183 
or  modified  184  by  the  lower  court,  except  as  directed  by  the 
court  of  appeals.  The  judgment  of  the  court  of  appeals  must 
be  made  the  judgment  of  the  lower  court.lss  The  supreme 
court  cannot  add  any  new  and  independent  direction  to  the 
judgment  of  the  court  of  appeals  beyond  what  may  be  re- 
quired to  carry  that  judgment  into  effect.  It  cannot  add  to 
the  judgment  contained  in  the  remittitur  a  new  or  further 
judgment,  even  for  costs  of  the  appeal  to  that  court.180  Where 
the  case  is  remanded  by  the  court  of  appeals  for  the  sole  pur- 
pose of  earning  out  its  judgment,  the  trial  court  has  no  power 
to  award  a  separate  bill  of  costs  to  each  appellant  Avhere  the 
court  of  appeals  has  taxed  costs  to  appellants,  or  to  grant  an 
extra  allowance.187     A  judgment  entered  in  conformity  with 

isojarvis  v.  Shaw,  16  Abb.  Pr.  415. 

isi  Franklin  Bank  Note  Co.  v.  Mackey,  15S  N.  Y.  683. 

is2Zapf  v.  Carter,  90  App.  Div.  407,  86  N.  Y.  Supp.  175;  Parrish  v. 
Parrish,  87  App.  Div.  430,  84  N.  Y.  Supp.  506;  Matter  of  Hopkins*  Will 
95  App.  Div.  57,  87  N.  Y.  Supp.  793. 

iss  Clark  v.  Mackin,  34  Hun,  345. 

184  Sheridan  v.  Andrews,  80  N.  Y.  648. 

iss  Murray  v.  Jones,  18  State  Rep.  916,  2  N.  Y.  Supp.  486. 

McGregor  v.  Buell,  1  Keyes,  153.  Lower  court  may  render  judg- 
ment for  costs  as  directed  in  the  remittitur.  Lumbard  v.  Syracuse, 
B.  &  N.  Y.  R.  Co.,  62  N.  Y.  290. 

isT  Hascall  v.  King,  54  App.  Div.  441,  66  N.  Y.  Supp.  1112.     So  held 


§  2S3i  RELIEF  GRANTED  ON  APPEAL.  392J 

Art.  II.     Appeals  to  Court  of  Appeals. — Remittitur. 


the  remittitur  from  the  court  of  appeals  cannot  be  treated  as 
irregular  in  the  court  below  by  reason  of  any  objection  which 
might  have  been  raised  in  the  appellate  court.1*58  On  a  dis- 
missal of  an  appeal,  the  judgment  entered  on  the  remittitur 
is  usually  the  same  as  in  case  of  an  affirmance.189  Matters  of 
surplusage  in  the  order  entered  in  the  lower  court  on  the  filing 
of  the  remittitur  are  not  fatal.1'"' 

No  "judgment"  can  be  entered  on  the  remittitur  of  the 
order  of  the  court  of  appeals  after  its  reversal  of  an  order 
or  interlocutory  judgment.191 

After  judgment  is  entered  on  the  remittitur,  such  judgment 
is  not  appealable  to  the  court  of  appeals,  since  that  court  can 
review  only  "actual  determinations"  of  the  lower  court.192 

Where  plaintiff  recovered  on  only  one  of  two  causes  of 
action  set  forth  in  the  complaint  and,  on  motion  of  defendant, 
his  costs  were  set-off  against  plaintiff's  and  judgment  entered 
for  plaintiff  for  the  balance  only,  and  on  appeal  the  judgment 
against  defendant  was  reversed,  the  court  below  had  power  to 
thereafter  correct  the  original  judgment  nunc  pro  tunc  so  as  to 
award  each  party  costs  as  adjusted.193 

Form   of  order  for  judgment. 

[Title  of  cause.]  [At  a term  of  the  supreme  court,  etc.] 

The  above-mentioned  having  appealed  to  the  court  of  appeals 

from  the  judgment  of  the  appellate  division  of  this  court, depart- 
ment, entered  on  the day  of ,  190 — ,  in  the  office  of  the  clerk 

of county,  and  the  court  of  appeals  having  heard  said  appeal  and 

ordered  and  adjudged  that  the  judgment  so  appealed  from  be  affirmed, 

and  judgment  entered  for  the ,  with  costs,  and  the  remittitur  from 

the  court  of  appeals  having  been  filed  in  the  office  of  the  clerk  of 

county;  now,  on  motion  of ,  attorney  for , 

as  to  separate  bill  of  costs  in  Isola  v.  Weber,  12  App.  Div.  267,  42  N. 
Y.  Supp.  G15. 

188  Griswold  v.  Havens,  16  Abb.  Pr.  413,  26  How.  Pr.  170. 

189  Union  India  Rubber  Co.  v.  Babcock,  11  Super.  Ct.  (4  Duer)  620. 
Form  of  judgment  as  approved  by  justices,  see  Id.  624,  625. 

':'"  Matter  of  Hopkins'  Will,  95  App.  Div.  57,  87  X.  Y.  Supp.  793. 
lei  Brown  v.  Lehigh,  50  N.  Y.  427. 
'•-Wilkins  v.  Earle,  46  N.  Y.  358. 

Genet  v.  Delaware  &  H.  Canal  Co.,  136  N.  Y.  217. 


3924  RELIEF  GRANTED  ON  APPEAL.  §  2834 

Ail.   11.     Appeals  to  Court  of  Appeals. — Remittitur. 

It  is  ordered  that  the  said  judgment  of  the  court  of  appeals  be,  and 
the  same  hereby  is,  made  the  judgment  of  this  court;   and  that  the 

judgment  entered  herein  on  the day  of  ,  190 — ,  be,  and 

the  same  hereby  is,  affirmed,  and  that  a  judgment  of  this  court  be 
entered  herein  affirming  said  judgment  with  costs  of  said  appeal  to 
be  taxed  against . 

Form  of  judgment  of  affirmance* 

LCaption.] 

The  above-named  having  appealed  to  the  court  of  appeals 

from  a  judgment  of  the  appellate  division  of  this  court,  depart- 
ment, entered  in  this  action  on  the day  of ,  190 — ,  affirm- 
ing the  judgment  entered  therein  on  the  day  of  ,  190 — , 

in  the  office  of  the  clerk  of county,  and  the  court  of  appeals  hav- 
ing heard  said  appeal,  and  ordered  and  adjudged  that  the  judgment  so 

appealed  from  be  affirmed  and  judgment  rendered   for  ,  with 

costs,  and  the  remittitur  from  the  court  of  appeals  having  been  filed 

in  the  office  of  the  clerk  of county,  and  an  order  having  been 

entered  thereon  making  the  judgment  of  the  court  of  appeals  the  judg- 
ment of  this  court,  and  directing  the  entry  of  a  judgment  of  affirm- 
ance herein  with  costs  of  said  appeal  to  be  taxed  against  , 

Now,  on  motion  of ,  attorney  for : 

It  is  adjudged  that  the  judgment  in  this  action  entered  on  the 

day  of  ,  190 — ,  be,  and  the  same  hereby  is,  affirmed,  and  that 

recover  of the  sum  of  dollars,  the  amount  of  his 

costs  herein  as  taxed. 

Effect  as  divesting  jurisdiction.     The  court  of  appeals 

does  not  lose  jurisdiction  "until  the  remittitur  has  been  filed 
in  the  court  below  and  that  court  has  taken  some  action 
thereon."194  Furthermore,  if  the  remittitur  has  been  "ir- 
regularly" filed  in  the  court  below,  the  court  of  appeals  does 
not  lose  jurisdiction  of  the  case,  but  may  require  the  remittitur 
to  be  corrected  and  made  to  conform  to  the  decision  actually 
made  hy  the  court  of  appeals.195 

When  the  remittitur  is  returned  to  the  court  of  appeals,  that 
court  is  reinvested  with  jurisdiction.  The  resumption  by  the 
court  of  appeals  of  its  jurisdiction  of  the  appeal,  where  the  re- 

^"  People  ex  rel.  Smith  v.  Village  of  Nelliston,  79  N.  Y.  638. 
195  Palmer  v.  Lawrence,  5  N.  Y.  (1  Seld.)  455;  McFarland  v.  Watson, 
4  How.  Pr.  128. 


§  2S34:  RELIEF  GRANTED  ON  APPEAL.  3925 

Art.  II.     Appeals  to  Court  of  Appeals. — Remittitur. 

mittitur  is  returned  after  it  is  filed  in  the  lower  court  and  an 
order  entered  thereon,  simply  suspends  proceedings  in  the 
lower  court,  and  where  the  judgment  is  not  changed  by  the 
court  of  appeals,  the  judgment  entered  on  the  first  remittitur 
will  not  be  set  aside.196 

Amendment.  If  the  remittitur  is  erroneous  in  any  re- 
spect, the  remedy  is  by  an  application  to  the  court  of  appeals 
to  amend  it.197  An  unnecessary  amendment  of  the  remittitur 
will  not  be  allowed.198  The  remittitur  will  not  be  amended  to 
show  the  grounds  of  the  decision  because  an  appeal  is  to  be 
taken  to  the  federal  supreme  court,  since  an  authenticated  copy 
of  the  opinion  can  be  obtained  to  be  transmitted  with  the 
record.199 

Return  of.  Having  lost  jurisdiction,  the  court  of  ap- 
peals must  request  a  return  of  the  remittitur  before  it  can  re- 
sume jurisdiction.200  Even  after  the  remittitur  is  filed  in  the 
court  below  and  an  order  entered  thereon,  a  judge  of  the  court 
of  appeals  may  make  an  order  to  show  cause  why  a  return  of 
the  remittitur  should  not  be  requested  and  a  reargument 
granted,  with  a  stay  of  proceedings  in  the  meantime.201  No 
good  reason  is  apparent  why  the  lower  court  should  not  have 
the  power  to  order  the  remittitur  returned  for  correction  with- 
out an  order  of  the  court  of  appeals  therefor,  but  the  cases 
hold  that  after  a  remittitur  has  been  actually  filed,  and  an 
order  entered  to  carry  into  effect  the  judgment  of  the  appel- 
late court,  the  order  will  not  be  vacated,  and  the  remittitur 
returned  to  the  court  of  appeals,  without  a  direction  therefor 
from  the  court  of  appeals.202  Where  the  court  of  appeals  has 
not  in  any  way  indicated  its  desire  or  willingness  that  the  re- 

196  Sweet  v.  Mowry,  138  N.  Y.  650. 

i^Zapf  v.  Carter,  90  App.  Div.  407,  86  N.  Y.  Supp.  175;  Matter  of 
Ingraham,  64  N.  Y.  310,  315. 

las  Sweet  v.  City  of  Syracuse,  49  State  Rep.  262,  20  N.  Y.  Supp.  924. 

199  People  ex  rel.  Schurz  v.  Cook,  111  N.  Y.  688. 

200  Bliss  v.  Hoggson,  84  N.  Y.  667. 

201  Franklin  Bank  Note  Co.  v.  Mackey,  158  N.  Y.  683. 

202  Selden  v.  Vermilya,  5  Super.  Ct.  (3  Sandf.)  683,  followed  in  Bo- 
gardus  v.  Rosendale  Mfg.  Co.,  8  Super.  Ct.  (1  Duer)  592. 


3926  RELIEF  GRANTED  ON  APPEAL.  §  2835 


\n.   II.     Appeals  to  Court  of  Appeals. 


mitt  it ur  should  be  returned,  it  will  not  be  returned  merely  be- 
cause tin1  attorney  of  the  defeated  party  desires  to  apply  for 
a  reargumenl  unless  grounds  for  a  reargument  are  shown.203 
The  purpose  of  recalling  the  remittitur  is  either  to  amend  it 
or  to  allow  a  reargument.  A  motion  to  have  the  remittitur  re- 
called will  not  be  granted  where  the  amendment  sought  would 
not  benefit  the  moving  party.-04 

§  2835.     Assessment  of  damages  in  lower  court. 

After  the  affirmance  of  an  order  granting  a  new  trial,  on  a 
case  or  exceptions,  and  the  rendition  of  judgment  absolute, 
"'an  assessment  of  damages,  or  any  other  proceeding  necessarv 
to  render  the  judgment  effectual,"  may  be  had  in  the  lower 
court.200  Inasmuch  as  the  effect  of  the  entry  of  a  judgment 
absolute  in  accordance  with  the  stipulation  is  the  same  as 
where  defendant  makes  default  in  pleading,  so  that  the  sole 
question  left  is  as  to  the  amount  of  the  plaintiff's  damages,206 
it  follows  that  an  amendment  of  the  complaint  will  not  be  al- 
lowed, after  entry  of  judgment  absolute,  by  setting  up  an  ele- 
ment of  damages  not  alleged  in  the  original  complaint,  except 
on  terms  such  as  that  all  proceedings  after  the  service  of  the 
original  complaint  be  set  aside,  that  plaintiff  be  required  to 
serve  his  amended  complaint  and  that  defendant  have  leave 
to  answer  it,  and  that  plaintiff  pay  all  costs  from  the  time  of 
the  service  of  the  original  complaint.207  The  successful  party 
is  entitled  to  whatever  judgment  he  could  have  obtained  on 

203  Hillyer  v.  Vandewater,  25  Abb.  N.  C.  137,  11  N.  Y.  Supp.  167. 

204  National  Shoe  &  Leather  Bank  v.  Mechanics'  Nat.  Bank,  89  N.  Y. 
467. 

205  See  vol.  3,  pp.  2867,  2868. 

20GBossout  v.  Rome,  W.  &  O.  R.  Co.,  131  N.  Y.  37;  Hanover  Nat 
Bank  v.  American  Dock  &  Trust  Co.,  14  App.  Div.  255,  43  N.  Y.  Supp. 
544;  Wood  v.  New  York  Cent.  &  H.  R.  R.  Co.,  100  App.  Div.  226,  91  N.  Y. 
Supp.  788;  Thompson  v.  Lumley,  7  Daly,  74.  The  right  of  recovery 
cannot  be  determined.  City  Trust,  Safe  Deposit  &  Surety  Co.  v.  Ameri- 
can Brewing  Co.,  182  N.  Y.  285. 

207  Wood  v.  New  York  Cent.  &  H.  R.  R.  Co.,  100  App.  Div.  226,  91  N.  Y. 
Supp.  788. 


2S36  RELIEF  GRANTED  ON  APPEAL.  3927 


Art.  III.     Appeals  to  Appellate  Division  From  Trial  or  Special  Term. 


the  new  trial  ordered  by  the  appellate  division.208  Where  the 
court  of  appeals  affirms  on  a  stipulation  for  judgment  abso- 
lute, the  lower  court  is  not  necessarily  deprived  of  all  discre- 
tion as  to  the  form  and  scope  of  the  judgment.  For  instance, 
where  an  action  was  brought  to  compel  the  removal  of  a 
nuisance  or  for  money  relief,  and  judgment  absolute  was 
ordered  in  favor  of  the  plaintiff,  it  was  held  that  the  character 
of  the  judgment  was  not  determined.2"'' 


ART.    III.     APPEALS    TO    APPELLATE     DIVISION     FROM     TRIAL 
OR  SPECIAL  TERM. 

§  2836.     Disposition  of  appeal. 

The  general  rules  already  laid  down  210  as  to  the  relief  which 
may  be  granted  by  an  appellate  court  apply  equally  well  to 
the  appellate  division  of  the  supreme  court. 

On  an  appeal  from  a  judgment  or  an  order,  the  appellate 
division,  or  the  general  term  to  which  the  appeal  is  taken,211 
"may  reverse  or  affirm,  wholly  or  partly,  or  may  modify,  the 
judgment  or  order  appealed  from,  and  each  interlocutory 
judgment  or  intermediate  order,  which  it  is  authorized  to  re- 
view, as  specified  in  the  notice  of  appeal,  and  as  to  any  or  all 
of  the  parties,  and  it  may,  if  necessary  or  proper,  grant  a  new 
trial  or  hearing."-12 

This  Code  provision  does  not  increase  the  powers  of  the 
appellate  division  but  is  merely  declaratory  of  its  inherent 
power.213     The  appellate  division  cannot  appoint  a  referee  to 

208  Maloney  v.  Nelson  16  Misc.  474,  478,  39  N.  Y.  Supp.  930. 

209  Bates  v.  Holbrook,  171  N.  Y.  688. 

210  See  ante,  art.  1. 

211  It  is  submitted  that  the  clause  "general  term  to  which  the  appeal 
is  taken"  has  no  place  in  the  provision  since  the  abolition  of  the  gen- 
eral term  of  the  city  court  of  New  York. 

212  Code  Civ.  Proc.  §  1317.  This  provision  does  not  apply  to  appeals 
from  justice's  judgments.  Richardson  v.  Levi,  69  Hun,  432,  436,  22  N. 
Y.  Supp.  352. 

-'•Goodsell  v.  Western  Union  Tel.  Co.,  109  N.  Y.  147. 


3928  RELIEF  GRANTED  ON  APPEAL.  §  2836 

Art.  III.     Appeals  to  Appellate  Division  From  Trial  or  Special  Term. 

take  proof  and  report  it  to  the  special  term  and  then  direct 
that  a  final  judgment  shall  be  entered  thereon.214 

Section  993  of  the  Code  provides  that  the  appellate  division 
shall,  on  appeal  from  a  judgment  entered  on  the  report  of  a 
referee,  or  the  decision  of  a  court  on  a  trial  without  a  jury, 
review  all  questions  of  fact  and  of  law,  and  may  either  modify 
or  affirm  the  judgment  or  order  appealed  from,  award  a  new 
trial,  or  grant  to  either  party  the  judgment  which  the  facts 
warrant."15 

It  has  been  held  that  the  court  has  no  power  to  affirm  the 
"judgment"  on  an  appeal  only  from  an  order  denying  a  new 
trial.210 

Appeal  from  nonsuit  or  verdict  directed  after  issues 

submitted  to  jury.  On  an  appeal  from  the  judgment  entered 
on  a  nonsuit  or  general  verdict  directed  after  the  submission 
of  issues  to  the  jury,  as  provided  for  by  section  1187  of  the 
Code,  "the  appellate  division  may  direct  such  judgment 
thereon  as  either  party  may  be  entitled  to."217  Section  1187 
should  be  read  in  connection  with  section  1317,  and  where 
special  questions  have  been  submitted  to  and  answered  by  the 
jury,  and  a  verdict  has  thereupon  been  directed  by  the  court, 
the  appellate  division,  on  an  appeal  from  the  judgment,  may 
either  direct  a  judgment  in  favor  of  either  party  or  under  sec- 
tion 1317  grant  a  new  trial.218  A  new  trial  may  be  ordered  in- 
stead of  reinstating;  the  verdict.211' 


214  Van  Beuren  v.  Wotherspoon,  164  N.  Y.  368. 

215  It  would  seem  that  the  phrase  "the  judgment  which  the  facts 
warrant"  refers  to  the  conceded  or  undisputed  facts  or  those  found  by 
the  trial  court.  See  Snyder  v.  Seeman,  157  N.  Y.  449,  which  so  held 
in  connection  with  a  like  clause,  now  abolished,  in  section  1022  of  the 
Code. 

216  Miller  v.  Eagle  L.  &  H.  Ins.  Co.,  3  E.  D.  Smith  184. 

217  Code  Civ.  Proc.  §  1187.  This  section  does  not  apply  where  the 
verdict  is  a  general  verdict.  True  v.  Lehigh  Val.  R.  Co.,  22  App.  Div. 
588,  593,  48  N.  Y.  Supp.  86. 

218  Sullivan  v.  Metropolitan  St.  R.  Co.,  37  App.  Div.  491,  493,  56  N.  Y. 
Supp.  88. 

219  Howell  v.  New  York  Cent.  &  H.  H.  R.  Co.,  68  App.  Div.  409. 


§  2S37  RELIEF  GRANTED  ON  APPEAL.  3929 

Art.  III.     Appeals  to  Appellate  Division  From  Trial  or  Special  Term. 

§  2837.     Contents  of  judgment  or  order. 

In  the  appellate  division,  "a  judgment,  affirming  wholly  or 
partly  a  judgment,  from  which  an  appeal  has  been  taken,  shall 
not,  expressly  and  in  terms,  award  to  the  respondent  a  sum  of 
money  or  other  relief  which  was  awarded  to  him  by  the  judg- 
ment so  affirmed."220  The  judgment  of  affirmance  should  not 
include  the  general  costs  of  the  action  but  only  the  costs  of  the 
appeal.221 

Care  should  be  taken  to  see  that  the  order  of  reversal  by 
the  appellate  division  shows  the  grounds  of  the  decision,  since 
the  scope  of  the  review  on  an  appeal  to  the  court  of  appeals 
may  be  affected  by  the  omission  of  the  grounds.222  The  suc- 
cessful party,  on  an  appeal  to  the  appellate  division  from  a 
judgment  entered  on  a  trial  without  a  jury,  should  be  careful 
to  see  to  it,  where  the  reversal  is  wholly  or  partially  on  the 
facts,  that  the  order  of  reversal  so  states,  in  order  to  cut  off,  so 
far  as  possible,  a  further  review  of  the  case  by  the  court  of 
appeals ;  but  if  the  appellate  division  reverses  a  judgment  and 
an  order  denying  a  new  trial,  "after  a  jury  trial,"  wholly  on 
the  law,  the  defeated  party  should  see  to  it  that  the  order  of 
reversal  so  states,  if  he  desires  to  appeal  to  the  court  of  ap- 
peals. In  the  one  case,  the  court  of  appeals,  in  the  absence  of 
a  showing,  will  presume  that  the  reversal  was  on  the  law,  and 
hence  the  successful  party  should  insert  the  clause  in  the  order 
of  reversal ;  in  the  other  case,  there  is  no  presumption,  and  the 
appeal  will  be  dismissed  if  it  is  not  shown  that  the  reversal  is  not 
based  wholly  or  partially  on  questions  of  fact.223  A  certificate 
cannot  take  the  place  of  a  statement  "in  the  record  body  of  the 

-•so  Code  Civ.  Proc.  §  1317.  It  would  seem  that  this  Code  provision 
is  intended  to  apply  only  to  appeals  to  the  appellate  division,  since  the 
abolition  of  the  general  term  of  the  city  court  of  New  York,  but  no 
reason  is  apparent  why  the  rule  should  not  also  apply  to  appeals  to 
the  court  of  appeals. 

22iBeardsley  Scythe  Co.  v.  Foster,  36  N.  Y.  561,  567;  Halsey  v.  Flint 
15  Abb.  Pr.  367. 

222  Queen  v.  Weaver,  166  N.  Y.  398. 

223  see  ante,  §§  2779,  2780. 


3930  RELIEF  GRANTED  ON  APPEAL.  §  2S37 

Art.   111.     Appeals  to  Appellate  Division    From  Trial  or  Special  Term. 

judgment  or  order  appealed  from."224  So  an  order  reversing 
and  granting  a  new  trial  on  the  grounds  stated  in  the  opinion 
"delivered  herein  and  which  is  hereby  made  a  part  of  the 
report"  cannot  be  considered  as  a  statement  that  the  reversal 
was  on  the  facts,225  though  it  has  been  held  that  where  ques- 
tions of  law  are  certified  for  review  and  the  certificate  ex- 
pressly refers  to  the  opinion  of  the  appellate  division  it  may 
be  considered.226 


Form  of  order  of  affirmance. 

[Title  of  cause]  [At  a  term  of  the  appellate  division,  etc.,] 

The  plaintiff  (or  "defendant")  above-named  having  appealed  to  the 

from ,  and  the  appeal  having  been  heard  at  this  term,  now, 

on  motion  of   ,  attorney  for  the  respondent,  and  after  hearing 

in  behalf  of  the  appellant; 

it    is    (unanimously)    ordered    that    the    judgment    entered    in    this 

action  in  the  office  of  the  clerk  of  the  county  of  be,  and  the 

same  hereby  is,  affirmed  in  all  things,  with  costs  of  said  appeal  to  the 

appellant. 

Form  of  judgment  of  affirmance. 

[Title  of  court  and  cause.] 

The  plaintiff     (or  "defendant")  above-named  having  appealed  to  the 

,  from  the  judgment  entered  in  this  action  on  the day  of 

,  190 — ,  in  the  office  of  the  clerk  of county,  and  the  appeal 

having  been  heard  at  a  term  of  the  appellate  division  of  the  supreme 

court,  department,  held  at  ,  on  the day  of  , 

190 — ,  and  an  order  of  said  appellate  division  having  been  made  and 
entered,  affirming  said  judgment  with  costs  of  said  appeal  to  the  re- 
spondent, all  the  justices  concurring, 

Now,  on  motion  of  ,  attorney  for  the  respondent: 

It  is  hereby  adjudged   that  the   said  judgment  be,   and   the   same 

hereby  is,  affirmed  in  all  things,  and  that ,  the  respondent  herein, 

recover  of ,  the  appellant  herein,  the  sum  of dollars,  costs 

of  said  appeal,  and  that  he  have  execution  therefor. 

[Date.]  [Signature  of  clerk.] 

224  Matter  of  Laudy,  148  N.  Y.  403. 

225  Townsend  v.  Bell,  167  N.  Y.  463.     See,  also,  Koehler  v.  Hughes, 
148  N.  Y.  507. 

220  Pringle  v.  Long  Island  R.  Co.,  157  N.  Y.  100. 


g  2837  RELIEF  GRANTED  ON  APPEAL.  3931 

Art.  III.     Appeals  to  Appellate  Division  From  Trial  or  Special  Term. 

Form   of  order   on   reversal. 

[Title  of  cause.]  [At  a  term  of  the  appellate  division,  etc.] 

The   plaintiff    (or    "defendant")    above   named    having   appealed   to 

from  ,  and  the  appeal  having  been  heard  at  this  term, 

now,  on  motion  of  ,  attorney  for  appellant,  and  after  hearing 

,  attorney  for  respondent; 


It  is  ordered  that  the  judgment  entered  in  this  action  on  the 


day  of ,  190 — ,  in  the  office  of  the  clerk  of county  be,  and 

the  same  hereby  is,  wholly  reversed  on  questions  of  law  only  227  [and 
a  new  trial  ordered  with  costs  to  abide  the  event]. 22s 

Form  of  judgment  of  reversal. 

[Title  of  court  and  cause.] 
The  plaintiff   (or  "defendant")    above  named  having  appealed  from 

the  judgment  entered  in  this  action  on  the day  of ,  190 — , 

in  the  office  of  the  clerk  of county,  and  the  appeal  having  been 

heard  at  a  term  of  the  appellate  division  of  the  supreme  court,  

department,  held  at ,  on  the day  of ,  190 — ,  and  an 

order  of  said  appellate  division  made,  reversing  said  judgment  [and 
ordering  a  new  trial  with  costs  to  abide  the  event] ; 

Now,  on  motion  of ,  attorney  for  the  appellant, 

It  is  hereby  adjudged  that  the  judgment  entered  in  this  action  on 

the  day  of  ,  190 — ,  in  the  office  of  the  clerk  of  

county,  be,  and  the  same  hereby  is,  reversed  [on  questions  of  law 
only],  [and  that  a  new  trial  of  said  action  be  had  in  this  court];  and 
that  [insert  direction  as  to  costs]. 

Amendment.     The  appellate  division  has  power,  even 


after  sending  down  its  remittitur  of  an  order  of  reversal  and 
while  an  appeal  therefrom  is  pending  in  the  court  of  appeals, 
to  amend  the  order  by  inserting  a  statement  that  the  reversal 
was  on  a  question  of  fact,  and  the  exercise  of  that  power  is  not 
reviewable  by  the  court  of  appeals,229  but  the  order  cannot  be 
amended  after  an  appeal  therefrom  has  been  determined  by 

■--'  Or  "on  questions  of  fact  only"  or  "both  on  questions  of  law  and 
questions  of  fact."  It  is  oftentimes  very  important  that  this  clause 
be  contained  in  the  order,  where  an  appeal  is  taken  to  the  court  of 
appeals. 

228  The  decision  should  be  closely  followed  in  framing  the  order. 

220  Matter  of  Health  Dept,  159  N.  Y.  245.  Order  as  amended  may 
be  attached  to  the  return.     Ross  v.  Gleason,  111  N.  Y.  683. 


3932  RELIEF  GRANTED  ON  APPEAL.  §  2S38 

Art.   111.     Appeals  to  Appellate  Division  From  Trial  or  Special  Term. 

the  court  of  appeals.230  The  order  of  reversal  may  be  amended 
by  stating  the  grounds,  though  only  one  of  the  original  justices 
who  heard  and  decided  the  appeal  was  present  when  the 
amendment  was  made.233 

Resettlement.     If  the  order  of  affirmance   or  reversal 

does  not  conform  to  the  decision,  a  motion  to  resettle  it  should 
be  made  at  the  appellate  division.232 

§  2838.     Entry  of  order  made  on  appeal  and  subsequent  pro- 
cedure. 

The  order  made  on  the  appeal  must  be  entered  in  the  office 
of  the  clerk  of  the  appellate  division,  and  a  certified  copy 
thereof  with  the  original  case  or  papers  on  which  the  appeal 
was  heard,  filed  as  provided  in  section  1353  of  the  Code,  must 
be  transmitted  .by  the  clerk,  on  payment  of  his  fees,  to  the 
clerk  of  the  county  where  the  judgment  or  order  appealed 
from  was  entered,  and  upon  such  certified  copy  of  the  order 
and  the  case  or  papers  on  which  the  appeal  was  heard,  the 
county  clerk  shall  enter  the  judgment  in  his  office.233 

After  the  decision  of  an  appeal  to  the  appellate  division 
from  a  judgment  of  a  trial  or  special  term  of  the  supreme  court, 
and  the  transmitting  of  a  certified  copy  of  the  order  of  the 
appellate  division,  judgment  is  entered  in  the  lower  court  by 
the  clerk,  on  the  application  of  the  successful  party.  Notice 
of  the  application  need  not  be  given.  The  terms  of  the  judg- 
ment are  fixed  on  the  settlement  of  the  appellate  division 
order.  Costs  are  adjusted  precisely  the  same  as  when  judg- 
ment is  entered  after  a  determination  of  the  trial   court. 

Necessity   that   judgment   be   entered.     Except   where 

a  new  trial  is  granted,  a  judgment  must  always  be  entered  by 

230  Whitman  v.  Foley,  40  State  Rep.  721,  16  N.  Y.  Supp.  23. 

231  Buckingham  v.  Dickinson,  54  N.  Y.  682. 

232  Martine  v.  Huyler,  34  State  Rep.  326,  12  N.  Y.  Supp.  66. 

233  Code  Civ.  Proc.  §  1355.  In  the  second  and  fourth  departments 
there  is  a  rule  that  "the  remittitur  to  be  transmitted  pursuant  to  sec- 
tion 1355  of  the  Code  shall  contain  a  copy  of  the  judgment  or  order  of 
this  court,  and  the  record  which  has  been  filed  with  the  clerk,  and 
shall  be  sealed  with  the  seal  and  signed  by  the  clerk  of  this  court." 


§  2S41  RELIEF  GRANTED  ON  APPEAL.  3933 

Art.  IV.     Appeal  to  Supreme  Court  From  Inferior  Court. 

the  county  clerk.  For  instance,  it  is  not  sufficient,  after  a  con- 
ditional affirmance  by  the  appellate  division,  to  file  the  re- 
quired stipulation  and  the  decision  of  the  appellate  division, 
but  a  formal  judgment  of  affirmance  must  be  entered.234 

Stay  of  proceeding's  after  entry  of  judgment.     Where 

judgment  is  entered  on  a  decision  of  the  appellate  division, 
the  proceedings  on  the  part  of  the  successful  party  may  be 
stayed  by  an  order  made  at  special  term  until  the  determina- 
tion of  an  appeal  taken  to  the  court  of  appeals.235 

§  2839.    Judgment  roll  where  appellate  division  affirms. 

Where  judgment  of  affirmance  is  rendered  on  the  appeal, 
the  judgment  roll  consists  of  a  copy  of  the  judgment,  annexed 
to  the  papers  on  which  the  appeal  was  heard.  Where  subse- 
quent proceedings  are  taken  at  the  trial  or  special  term  before 
the  entry  of  final  judgment,  the  roll  must  also  contain  the 
proper  papers  relating  thereto.236 

§  2840.    Applications  to  appellate  division  after  determination 
of  appeal  by  the  court  of  appeals. 

After  a  dismissal  of  the  appeal  by  the  court  of  appeals,  the 
appellate  division  will  not  allow  amended  exceptions  to  the 
findings  of  the  trial  court.237 


ART.  IV.   APPEAL  TO  SUPREME  COURT  FROM  AN  INFERIOR 

COURT. 

§  2841.     General  considerations. 

There  is  nothing  relating  to  the  judgment  or  order  which 
may  be  entered  on  an  appeal  to  the  supreme  court  from  an 
inferior  court  which  does  not  also  apply  to  the  judgment  or 

234  Knapp  v.  Roche,  82  N.  Y.  366. 

235  Gray  v.  Green,  14   Hun,  18. 

236  Code  Civ.  Proc.  §  1354. 

237  Drake  v.  New  York  Iron  Mine,  38  App.  Div.  71,  55  N.  Y.  Supp. 
920. 


3934  RELIEF  GRANTED  ON  APPEAL.  §  2842 

Art.    [V.     Appeal   to  Supreme  Court  From  Inferior  Court. 

order  entered  on  any  other  appeal  considered  in  this  chapter, 
except  as  set  forth  in  the  following  section. 

§  2842.     Judgment  or  order. 

A  judgment  or  order  of  the  appellate  division  rendered  on 
an  appeal  from  an  inferior  court  must  be  entered  in  the  office 
of  the  clerk  of  the  appellate  division  in  the  department  in 
which  the  court  below  is  located.  A  certified  copy  thereof 
annexed  to  the  papers  transmitted  from  the  court  below  must 
be  transmitted  by  the  clerk,  on  payment  of  his  fees,  to  the 
clerk  of  the  county  where  the  court  from  which  the  appeal  was 
taken  is  situated,  and  shall  constitute  the  judgment  roll  and  re- 
main in  his  office.238 

The  filing  of  the  judgment  roll  or  the  entry  of  the  order  is 
a  sufficient  authority  for  any  proceedings  in  the  court  below 
or  before  the  judge  or  justice  who  made  the  order  appealed 
from,  which  the  judgment  or  order  of  the  appellate  court  di- 
rects or  permits.  But  where  the-  execution  of  the  judgment 
or  order  of  the  appellate  court  is  stayed  by  an  appeal  to  the 
court  of  appeals,  the  proceedings  in  the  court  below  or  before 
the  judge  or  justice  who  made  the  order  are  stayed  in  like 
manner.209 

Appeals  from  city  courts  of  New  York  or  Buffalo.     A 

judgment  or  order  of  the  supreme  court,  rendered  on  an  ap- 
peal from  a  judgment  of  any  district  court  or  of  the  city 
court  of  New  York,  or  an  appeal  formerly  heard  by  the  su- 
perior court  of  Buffalo,  must  be  entered  in  the  office  of  the 
clerk  of  the  county  wherein  the  court  below  is  located,  and, 
with  the  papers  transmitted  from  the  court  below,  forms  the 
judgment  roll  which  must  be  filed  in  the  same  office.  Where 
the  appeal  is  from  the  city  court  of  New  York,  the  judgment 
or  order  of  the  supreme  court  must  be  entered  in  the  office  of 
the  clerk  of  the  said  [supreme]  court.240 

238  Code  Civ.  Proc.  §  1345.  Authorizes  entry  of  judgment  in  county 
court  on  order  of  reversal  by  appellate  division.  Short  v.  Scutt,  57  N. 
Y.  Supp.  393. 

239  Id. 
Id. 


§  2843  RELIEF  GRANTED  ON  APPEAL.  3935 

Art.  V.     Appeal   From  Appellate  Term  to   Appellate  Division. 

Appeals    from    final    orders    in    special    proceedings. 


Where  a  final  order  made  in  a  special  proceeding,  from  which 
an  appeal  has  been  taken,  from  one  court  to  another,  is  wholly 
or  partly  affirmed,  or  is  modified,  upon  the  appeal,  the  appel- 
late court  may  enforce  its  order,  or  may  direct  the  proceedings 
to  be  remitted,  for  that  purpose,  to  the  court  below,  or  to  the 
judge  who  made  the  order  appealed  from.241 


ART.  V.  APPEAL  FROM  APPELLATE  TERM  ^O  APPELLATE 

DIVISION. 

§  2843.     Code  provision. 

Section  3194  of  the  Code  provides  for  a  remittitur  where  an 
appeal  has  been  taken  to  the  appellate  division  from  the  ap- 
pellate term  and  requires  judgment  absolute  in  case  of  af- 
firmance of  an  order  granting  a  new  trial,  on  a  case  or  excep- 
tions, and  an  assessment  of  damages  in  the  city  court,  the  same 
as  on  an  appeal  to  the  court  of  appeals. 

2«  Code  Civ.  Proc.  §  1320.  The  appellate  division  may  grant  relief 
which  the  county  court  has  no  power  to  grant.  Ithaca  Agricultural 
Works  v.  Eggleston,  21  State  Rep.  566,  4  N.  Y.  Supp.  933. 


CHAPTER  XVIII. 
COSTS  ON  APPEAL. 

ART.    I.     GENERAL    RULES. 

Scope  of  chapter  and  Code  provisions  to  be  considered,  §  2844. 
Power  to  grant  or  withhold,  §  2845. 

Stipulation  as  to  costs. 

Necessity  of  awarding  costs,  §  2846. 
What  law  governs,  §  2847. 

.  er  of  right  to  costs,  §  2848. 
Actions  against  municipal  corporations,  §  2S49. 

ART.   II.     DISCRETION  OF  COURT. 

(A)  WHEN  COSTS  ARE  A  MATTER  OF  RIGHT. 

Code  rule,  §  2850. 

(B)  WHEN   COSTS  ARE   DISCRETIONARY. 

Appeal  from  final  judgment,  §  2851. 

Where  new  trial  is  awarded. 

Where  judgment  is  modified. 

Appeal  from  interlocutory  judgment  or  order,  §  2852. 
Appeal  from  order  in  a  special  proceeding,  §  2853. 

In   condemnation   proceedings. 

On  dismissal  of  appeal,  §  2854. 
On  cross-appeals,  §  2855. 

ART.   III.      SEPARATE    BILLS  OF   COSTS. 

Several  appellants,  §  2856. 

Several    respondents,    §    2S57. 

Appeal  by  both  parties,  §  2858. 

Separate  appeals  by  co-parties,  §  2859. 

Appeal  from  two  or  more  orders,  §  2860. 

Appeal  from  judgment  and  from  order  denying  a  new  trial, 
§  2861. 

Where  two  or  more  actions  tried  as  one,  §  2862. 

Where  action  is  severed,  §  2S63. 

Where  decision  is  to  abide  the  event  of  another  appeal,  §  2864. 

WThere  motion  and  appeal  heard  at  same  time,  §  2865. 

Where  there  are  several  judgments  of  affirmance  by  an  inter- 
mediate court.  §  2866. 


COSTS  ON  APPEAL.  3937 


Analysis. 


ART.   IV.     PERSONS     ENTITLED    AND     LIABLE,    AND    PAYMENT 
FROM   FUND. 

Persons  liable,  §  2867. 

Persons  entitled,  §  2868. 

Ordering  costs  to  be  paid  from  fund,  §  2869. 

ART.  V.     AMOUNT  AND   ITEMS. 

Appeal  to  the  court  of  appeals,  §  2870. 

Term  fees. 

Damages  for  delay. 

Appeal  to  the  supreme  court  or  appellate  division,  §  2871. 

Costs  for  argument. 

Term  fees. 

Appeal  from  order  in  special  proceedings. 

Appeal  transferred  from  county  court. 

Dismissal   of  appeal. 

Charge  for  making  case,  §  2872. 
Disbursements,   §   2873. 

Printing  expenses. 

Increased  costs,  §  2874. 
Additional  allowances,  §  2875. 

ART.  VI.  PROCEDURE  IN  LOWER  COURT. 

(A)  CONSTRUCTION  OF  ORDER  OF  APPELLATE  COURT. 

General  considerations,  §  2876. 

Where  costs  are  a  matter  of  right  in  the  trial  court,  §  2877. 

Reversal  or  affirmance  "with  costs,"  §  2878. 

Order  of  appellate  division. 

Order  of  court  of  appeals. 

As  including  disbursements. 

Separate  bills  of  costs. 

Reversal  or  affirmance  "without  costs,"  §  2879. 

Costs  "to  abide  the  event,"  §  2880. 

Costs  "to  appellant  to  abide  the  event,"  §  2881. 

(B)  TAXATION. 

Procedure,  §  2882. 

ART.  VII.     COLLECTION. 

Costs  on  appeal  from  final  judgment,  §  2883. 
Costs  on  appeal  from  interlocutory  judgment,  §  2884. 
Costs  on  appeal  from  order,  §  2885. 
N.  Y.  Prac—  247. 


3938  COSTS  ON  APPEAL.  §  2845 


Art.  I.     General  Rules. 


ART.  I.  GENERAL  RULES. 

§  2844.     Scope  of  chapter  and  Code  provisions  to  be  con- 
sidered. 

Costs  on  appeal  to  the  court  of  appeals,  the  appellate  division 
of  the  supreme  court,  and  the  appellate  term,  will  be  consid- 
ered in  this  chapter,  except  the  rules  peculiarly  applicable  to 
costs  on  appeal  from  a  surrogate's  court  and  from  city  courts 
not  of  record. 

Prior  to  the  present  Code,  the  right  to  costs  depended  on  the 
Code  rules  applicable  to  costs  in  the  trial  court  but  now  the 
right  is  definitely  fixed  by  the  Code,  and  the  rule  that  costs 
in  the  lower  court  can  only  be  obtained  where  provided  for 
by  statute  applies  to  the  costs  on  appeal.1  Sections  3238  and 
3239  of  the  Code  fix  the  right  to  costs  on  appeal  while  subdi- 
visions 4  and  5  of  section  3251  fix  the  items  of  costs  allowable. 
These  Code  provisions  apply  only  to  an  action  in  the  supreme 
court,  the  city  court  of  the  city  of  New  York,  or  a  county 
court,2  and  do  not  apply  to  an  action  commenced  in  some  other 
court  and  transferred  to  one  of  the  courts  named.3 

§  2845.     Power  to  grant  or  withhold. 

The  court  to  which  the.  appeal  is  taken  is  the  only  court 
which  can  award  the  costs  of  the  appeal,  except  that  where  a 
further  appeal  is  taken  to  the  court  of  appeals  and  the  appel- 
late division  has  not  exercised  its  discretion,  the  costs  of  the 
first  appeal  may  be  awarded  by  the  court  of  appeals.  The  court 
may,  it  seems,  award  costs  even  though  it  has  no  jurisdiction  to 
hear  the  appeal.4     If  costs  follow  as  a  matter  of  course,  the 

1  See  People  ex  rel.  N.  Y.  Soc.  for  Prevention  of  Cruelty  to  Children 
v.  Gilmore,  88  N.  Y.  626. 

2  Code  Civ.  Proc.  §  3347,  subd.  13. 

s  Levene  v.  Hahner,  62  App.  Div.  195,  70  N.  Y.  Supp.  913. 
*  Where  a  party  on  notice  of  the  hearing  of  an  appeal,  attends  to  op- 
pose, the  court  has  jurisdiction  to  award  costs,  though  by  reason  of  no 


§  2847  COSTS  ON  APPEAL.  3939 


Art.  I.     General  Rules. 


court  has  no  power  to  withhold  the  costs,  and  the  addition  of 
the  words  "with  costs"  or  "without  costs"  to  its  order  does 
not  effect  the  right  of  the  successful  party.5 

Stipulation  as  to  costs.     The  right  to  costs  may  be  fixed 

by  stipulation.6 

§  2846.     Necessity  of  awarding  costs. 

The  successful  party  is  not  entitled  to  costs,  where  they  are 
discretionary,  unless  specially  awarded.7  In  such  a  case,  if  the 
order  is  silent  as  to  costs,  none  can  be  taxed  in  favor  of  either 
party.  For  instance,  no  costs  should  be  taxed  where  a  new 
trial  is  awarded  by  the  appellate  court,  unless  the  order  of  the 
appellate  court  expressly  provides  therefor.8  But  where  costs 
are  a  matter  of  course  they  may  be  taxed  though  not  referred 
to  in  the  order  of  the  appellate  court.9 

§  2847.     What  law  governs. 

The  costs  of  an  appeal  are  to  be  taxed  according  to  the  law 
at  the  time  of  the  decision  of  the  appellate  court,  or  when  the 
judgment  of  that  court  is  made  the  judgment  of  the  lower 
court.10 

appeal  in  fact  being  entered,  it  has  no  general  jurisdiction  of  the  cause. 
Mechanics'  Bank  v.  Snowden,  2  Paige,  299. 

s  Tompkins  County  Sup'rs  v.  Bristol,  58  How.  Pr.  3;  Ayers  v.  West- 
ern R.  Corp.,  49  N.  Y.  660. 

e  Moses  v.  McDivitt,  2  Abb.  N.  C.  47.  In  this  case,  the  event  in 
which  costs  were  to  be  allowed  did  not  happen,  and  costs  were  not 
allowed  to  the  prevailing  party.  Effect  of  stipulation  to  abide  the 
event  of  another  appeal,  see  post,  §  2864. 

sspennell  v.  Wilson,  2  Abb.  Pr.  (N.  S.)  466,  28  Super.  Ct.  (5  Rob.) 
674. 

"Combs  v.  Combs,  25  Hun,  279;  Clarke  v.  Meigs,  23  Super.  Ct.  (10 
Bosw.)  337;  Ayers  v.  Western  R.  Corp.,  49  N.  Y.  660.  The  words  "with 
costs"  in  the  memorandum  do  not  affect  the  rights  of  the  parties  in 
their  claim  to  costs  on  appeal  since  their  rights  are  fixed  and  deter- 
mined by  the  law  itself.  Tompkins  County  Sup'rs  v.  Bristol,  58  How. 
Pr.  3. 

10  Ackley  v.  Tarbox,  19  Abb.  Pr.  119.     Compare  vol.  3,  p.  2904. 


3940  COSTS  ON  APPEAL.  §  2S50 

Art.   II.     Discretion  of  Court. — A.  When  Costs  Are  Matter  of  Right. 

§  2848.    Waiver  of  right  to  costs. 

A  party  may  waive  the  costs  of  appeal  by  perfecting  a 
judgment  upon  the  order  of  affirmance  without  inserting 
them.11 

§  2849.     Actions  against  municipal  corporations. 

Costs  of  appeal  may  be  awarded  against  a  municipal  cor- 
poration though  the  claim  has  not  been  duly  presented  before 
trial  so  as  to  authorize  costs  in  the  lower  court.12 


ART.   II.     DISCRETION   OF  COURT. 

(A)   WHEN  COSTS  ARE  A  MATTER  OF  RIGHT. 

§  2850.     Code  rule. 

"Upon  an  appeal  from  the  final  judgment  in  an  action,  the 
recovery  of  costs  is  regulated  as  follows : 

"1.  In  an  action  specified  in  section  3228  of  this  act,  the  re- 
spondent is  entitled  to  costs  upon  the  affirmance,  and  the  ap- 
pellant upon  the  reversal,  of  the  judgment  appealed  from;  ex- 
cept that,  where  a  new  trial  is  directed,  costs  may  be  awarded 
to  either  party,  absolutely  or  to  abide  the  event,  in  the  dis- 
cretion of  the  court. 

"2.  In  every  other  action,  and  also  where  the  final  judgment 
appealed  from  is  affirmed  in  part,  and  reversed  in  part,  costs 
may  be  awarded  in  like  manner,  in  the  discretion  of  the 
court."  13 

In  short,  if  the  action  is  a  common-law  one,  costs  are  a  matter 
of  course  on  (1)  affirmance,  or  (2)  reversal;  unless  (a)  a  new 
trial   is  directed,   or    (b)    the   affirmance   or  reversal  is   only 

ii  Whitney  v.  Townsend,  67  N.  Y.  40.     See,  also,  vol.  3,  p.  2905. 

12  Utica  Water  Works  Co.  v.  City  of  Utica,  31  Hun,  426. 

is  Code  Civ.  Proc.  §  3238.  Actions  specified  in  §  3228,  see  vol.  3,  pp. 
2906  et  seq.  Appeal  from  judgment  in  a  common-law  action,  granted 
because  of  frivolousness  of  answer,  is  an  appeal  from  a  final  judgment 
so  that  there  is  no  discretion  as  to  the  costs  of  the  appeal  where  there 
is  an  affirmance  or  reversal  without  granting  a  new  trial.  McMoran 
v.  Lange,  25  App.  Div.  11,  48  N.  Y.  Supp.  100. 


§  2851  COSTS  ON  APPEAL.  3941 

Art.    II.      Discretion    of    Court. — B.  "When    Costs    Are    Discretionary. 

partial,  in  which  case  costs  are  discretional  In  equity  cases, 
costs  on  appeal  are  always  discretionary  tne  same  as  in  the 
trial  court. 

A  holding  that  this  Code  provision  applies  to  actions  com- 
menced in  a  justice's  court,  appealed  to  the  county  court,  and 
thence  taken  by  appeal  to  the  appellate  division  of  the  supreme 
court,14  is  overruled  by  a  later  decision  which  holds  that  it  ap- 
plies only  to  actions  "begun"  in  the  supreme  court,  a  county 
court,  or  the  city  court  of  New  York.15 

(B)   WHEN  COSTS  ARE  DISCRETIONARY. 

§  2851.    Appeal  from  final  judgment. 

Costs  are  discretionary,  on  appeal  from  a  final  judgment, 
(1)  where  a  new  trial  is  directed,  (2)  where  the  judgment  is  af- 
firmed in  part  and  reversed  in  part,  and  (3)  where  the  judg- 
ment was  rendered  in  an  equitable  action,  i.  e.,  an  action  not 
specified  in  section  3228  of  the  Code.16  "Where  the  award  of 
costs  of  the  trial  of  an  action  is  discretionary  in  the  lower 
court  the  same  discretion  is  vested  in  the  appellate  court  as  to 
the  costs  of  the  appeal.17 

The  general  rule,  in  equity  cases,  is  that  one  who  appeals 
and  obtains  a  reversal  or  modification  on  an  objection  which 
was  not  urged  in  the  lower  court  but  which  might  have  been, 
should  nevertheless  be  charged  with  costs.18  For  instance, 
where  the  point  upon  which  the  appellate  division  reverses  a 
judgment  is  one  which  might  have  been  taken  by  demurrer, 
but  was  for  the  first  time  taken  on  appeal  from  judgment  at 
special  term,  neither  party  should  be  allowed  costs  on  the  re- 
versal.19    So  where  an  appeal  has  been  taken  after  an  offer  to 

i4  Combs  v.  Combs,  25  Hun,  278. 

is  Levene  v.  Hahner,  62  App.  Div.  195,  70  N.  Y.  Supp.  913. 

io  Code  Civ.  Proc.  §  3238. 

17  See  vol.  3,  pp.  2925  et  seq.,  for  actions  in  which  costs  are  discretion- 
ary in  the  trial  court  and  the  rules  observed  in  exercising  such  dis- 
cretion. 

is  Stewart  v.  Green,  11  Paige,  535;  Jones  v.  Phelps,  2  Barb.  Ch.  440. 

i9  Youngs   v.   Wilson,    24    Barb.    510.     Query,   would   this   rule   apply 


3942  COSTS  ON  APPEAL.  §  2851 

Art.    11.       Discretion    of    Court. — B.  When    Costs    Are    Discretionary. 

eorrecl  the  error  on  which  the  appeal  is  based,  costs  will  gen- 
erally not  be  allowed.20 

Where  new  trial  is  awarded.  Where  a  new  trial  is  di- 
rected, "costs  may  be  awarded  to  either  party,  absolutely  or 
to  abide  the  event,  in  the  discretion  of  the  court. ' ' 21  Costs 
on  appeal  always  being  discretionary  in  equity  cases,  the  only 
purpose  of  this  rule  is  to  extend  the  discretion  to  common-law 
actions  where  the  appellate  court  awards  a  new  trial.  If  a 
new  trial  is  granted  and  the  judgment  makes  no  provision  as 
to  costs,  no  costs  of  the  appeal  can  be  taxed.22  Generally  the 
appellate  court,  on  granting  a  new  trial,  reverses  "with  costs 
to  appellant  to  abide  the  event"  or  "with  costs  to  abide  the 
event."  The  meaning  of  such  terms  will  be  considered  in  an- 
other section.23  No  costs  will  be  awarded  in  directing  a  new 
trial  where  the  reversal  is  based  on  an  objection  first  urged  on 
appeal.24 

Where  judgment  is  modified.     The  discretion  to  award 

costs  of  appeal,  where  the  judgment  is  affirmed  in  part  and  re- 
versed in  part,  is  given  only  to  the  appellate  court,  which  thus 
modifies  the  judgment,  and  only  as  to  the  costs  in  that  court.25 
Costs  are  discretionary  on  a  partial  affirmance  though  the 
action  is  to  enforce  a  legal  liability.26     If  the  judgment  is  ma- 

where  the  ground  of  demurrer  is  one  not  waived  because  not  urged  in 
the  lower  court? 

20  Perrine  v.  Hotchkiss,  2  T.  &  C.  370. 

2i  Code  Civ.  Proc.  §  3238,  subd.  1. 

22  See  ante,  §  2834. 

23  See  post,  §§  2880,  2881. 

24  Howell  v.  Wright  Dairy  Co.,  31  Misc.  755,  64  N.  Y.  Supp.  55;  Janos 
v.  Samstag,  31  Misc.  790,  65  N.  Y.  Supp.  223. 

25  Sturgis  v.  Spofford,  58  N.  Y.  103.  Costs  of  appeal  will  not  be 
granted  to  plaintiff  in  an  action  against  a  constable  where  the  remedy 
sought  was  somewhat  severe,  and  the  judgment  in  plaintiff's  favor  was 
modified.  Rutzkowski  v.  George,  92  Hun,  412,  71  State  Rep.  855,  36 
N.  Y.  Supp.  762.  The  notice  of  appeal  being  too  broad,  the  court  in 
modifying  the  order  appealed  from  refused  costs.  Matter  of  King,  130 
N.  Y.  602. 

26  Metropolitan  El.  R.  Co.  v.  Duggin,  33  State  Rep.  992,  11  N.  Y. 
Supp.  819. 


§  2852  COSTS  ON  APPEAL.  3943 

Art.    II.      Discretion    of    Court. — B.  When    Costs    Are    Discretionary. 

terially  modified  on  appeal,  no  costs  are  usually  awarded.  But 
where  the  judgment  is  modified  as  to  a  matter  which  would 
have  been  corrected  had  appellant  brought  it  to  the  attention 
of  the  trial  court,  respondent  is  entitled  to  costs  of  the  appeal.27 
For  instance,  a  mere  error  of  calculation,  to  which  the  atten- 
tion of  the  court  below  was  not  called,  will  not  deprive  the  re- 
spondent of  costs.28  So  a  small  error  as  to  interest  will  not 
affect  the  question  of  costs.29  If  respondent  substantially  suc- 
ceeds, though  the  judgment  is  modified,  costs  should  be 
awarded  to  him.30  Modifying  a  judgment  by  striking  out  the 
clause,  making  the  dismissal  of  the  complaint  a  dismissal  "on 
the  merits,"  does  not  affect  the  respondent's  right  to  costs  on 
the  appeal.31  Where  a  judgment  can  be  modified  only  on  ap- 
peal, it  seems  that  the  appellant  should  have  costs  of  the  ap- 
peal where  it  results  in  a  modification  of  the  judgment  ap- 
pealed from.32 

In  the  absence  of  special  circumstances,  where  a  judgment 
is  reversed  as  to  one  defendant  and  affirmed  as  to  the  other, 
where  both  appeal,  costs  should  be  awarded  the  successful  ap- 
pellant.33 

§  2852.     Appeal  from  interlocutory  judgment  or  order. 

"Upon  an  appeal  from  an  interlocutory  judgment  or  an  or- 
der, in  an  action,  costs  are  in  the  discretion  of  the  court,  and 
may  be  awarded  absolutely,  or  to  abide  the  event,  except  as 
follows : 

"1.  "Where  the  appeal  is  taken  from  an  order,  granting  or  re- 
fusing a  new  trial,  and  the  decision  upon  the  appeal  refuses  a 

27  Zimmerman  v.  Long  Island  R.  Co.,  14  App.  Div.  562,  43  N.  Y.  Supp. 
883. 

28  Clark  v.  Geery,  40  Super.  Ct.   (8  J.  &  S.)  227. 

29  Bank  of  Syracuse  v.  Wisconsin  Marine  &  Fire  Ins.  Co.  Bank,  36 
State  Rep.  584,  12  N.  Y.  Supp.  952. 

30  Harris  v.  Osnowitz,  35  App.  Div.  594,  55  N.  Y.  Supp.  172;  De  Lancey 
v.  Piepgras,  76  Hun,  70,  27  N.  Y.  Supp.  1110. 

si  Johnson  v.  Lord,  35  App.  Div.  325,  328,  54  N.  Y.  Supp.  922. 

32  See  Darde  v.  Conklin,  73  App.  Div.  590,  77  N.  Y.  Supp.  39. 

33  Montgomery  County  Bank  v.  Albany  City  Bank,  7  N.  Y.  (3  Seld.) 
459,  465. 


3944  COSTS  ON  APPEAL.  §  2853 


Art.    II.      Discretion    of    Court. — B.   When    Costs    Are    Discretionary. 


new  trial,  the  respondent  is  entitled,  of  course,  to  the  costs  of 
the  appeal. 

"2.  Where  an  appeal  is  taken  from  an  order,  refusing  a 
new  trial,  and  an  appeal  is  also  taken  from  the  judgment  ren- 
dered upon  the  trial,  neither  party  is  entitled  to  the  costs  of  the 
appeal  from  the  order."  34 

Observe  that  this  Code  provision  applies  to  an  appeal  from 
an  order  "in  an  action." 

Subdivision  two,  supra,  relates  only  to  new  trials  on  the 
minutes,35  and  does  not  apply  to  an  appeal  from  an  order  deny- 
ing a  motion  for  a  new  trial  because  of  the  failure  to  file  a  de- 
cision within  twenty  days.30 

Costs  are  usually  imposed  on  affirming  or  reversing  an  order 
except  where  the  question  is  new  and  the  practice  unsettled,37 
and  except  that  where  the  objection  on  which  the  reversal  is 
based  was  not  raised  in  the  lower  court,  the  reversal  should  be 
without  costs.38  If  the  order  is  silent  as  to  costs,  none  can  be 
taxed,39  except  where  the  appeal  is  from  an  order  granting  or 
refusing  a  new  trial  and  the  appellate  court  refuses  a  new 
trial,  in  which  case  there  is  no  discretion  as  to  costs. 

§  2853.     Appeal  from  order  in  a  special  proceeding. 

Costs  on  an  appeal  in  a  special  proceeding,  taken  to  a  court  of 
record  where  the  costs  thereof  are  not  specially  regulated  by  the 

s*  Code  Civ.  Proc.  §  3239.  That  costs  are  discretionary,  see  Savage 
v.  Darrow,  4  How.  Pr.  74,  subd.  1;  Mclntyre  v.  German  Sav.  Bank,  59 
Hun,  536,  13  N.  Y.  Supp.  674.  Subd.  2.  Where  the  appellate  division, 
upon  affirming  a  judgment  appealed  from,  also  affirms  an  order  denying 
a  motion  for  a  new  trial,  having  awarded  costs  upon  the  appeal  from 
the  judgment,  the  court  has  no  further  power  to  award  costs  upon  the 
appeal  from  the  order.  Syms  v.  City  of  New  York,  105  N.  Y.  153.  Com- 
pare, as  contra,  Keeler  v.  Barrett's  etc.,  Dyeing  Establishment,  54  Super. 
Ct.  (22  J.  &  S.)  550,  18  Abb.  N.  C.  459,  12  Civ.  Proc.  R.   (Browne)  121. 

35  Streep  v.  McLoughlin,  36  Misc.  165,  72  N.  Y.  Supp.  1061,  does  not 
apply  to  costs  on  appeal  from  an  order  refusing  a  motion  for  a  new 
trial  made  on  the  ground  of  newly-discovered  evidence.     Id. 

so  Garrett  v.  Wood,  61  App.  Div.  293,  70  N.  Y.  Supp.  358. 

37  See  Hesse  v.  Briggs,  45  Super.  Ct.  (13  J.  &  S.)  417. 

ss  Dohn  v.  Buffalo  Amusement  Co.,  66  App.  Div.  446,  73  N.  Y.  Supp.  95. 

so  Savage  v.  Darrow,  4  How.  Pr.  74,  2  Code.  R.  57. 


2854  COSTS  ON  APPEAL.  3945 


Art.    II.      Discretion    of    Court. — B.  When    Costs    Are   Discretionary. 


Code,40  may  be  awarded  to  any  party,  in  the  discretion  of  the 
court.41  On  reversing  an  order  adjudging  a  person  guilty 
of  a  "criminal"  contempt,  costs  cannot  be  imposed  on  the  re- 
lator, since  the  proceeding  is  not  a  special  proceeding  and  no 
provision  is  made  in  the  statutes  as  to  costs  in  such  cases.42 

In  condemnation  proceedings.     If  a  trial  has  been  had 

and  judgment  entered  in  favor  of  the  defendant,  and  plaintiff 
appeals,  if  the  judgment  is  affirmed  costs  shall  be  allowed  to 
the  respondent,  but  if  reversed  or  modified  no  costs  of  the  ap- 
peal shall  be  allowed  to  either  party.43  In  other  words,  where 
the  company  instituting  condemnation  proceedings  appeals 
from  an  award,  no  costs  should  be  awarded  against  the  land- 
owners in  any  event.44 

§  2854.     On  dismissal  of  appeal. 

Usually  costs  are  imposed  on  the  appellant  where  the  appeal 
is  dismissed  on  motion,  and  a  dismissal  "with  costs"  is  pro- 
vided for  by  the  rules  of  court  where  the  dismissal  is  because 
of  appellant's  failure  to  print  and  serve  the  appeal  papers. 
But  where  all  the  parties  were  ignorant,  at  the  time  of  the 
rendition  of  the  judgment,  of  the  actual  disqualification  of  the 
judge  because  of  his  distant  relationship  to  one  of  the  parties, 
a  dismissal  of  an  appeal  from  the  judgment  will  be  without 
costs.45     So  where  parties  succeed  in  an  application  to  dismiss 

40  On  a  writ  of  certiorari  to  review  the  determination  of  an  inferior 
tribunal,  costs,  not  exceeding  fifty  dollars  and  disbursements,  may  be 
awarded  by  the  final  order,  in  favor  of  or  against  either  party,  in  the 
discretion  of  the  court.  Code  Civ.  Proc.  §  2143.  Costs  are  "specially 
regulated"  in  supplementary  proceedings.  Jones  v.  Sherman,  11  Civ. 
Proc.  R.  (Browne)  416.  So  costs  on  an  appeal  from  a  summary  proceed- 
ing instituted  before  a  justice  of  the  peace  are  specially  regulated  by 
sections  2260  and  3066  of  the  Code  and  hence  are  not  discretionary. 
Harrison  v.  Swart,  34  Hun,  259. 

4i  Code  Civ.  Proc.  §  3240;  Matter  of  Babcock's  Estate,  86  App.  Div. 
563,  83  N.  Y.  Supp.  1020.     What  are  special  proceedings,  see  vol.  1. 

42  People  ex  rel.  N.  Y.  Soc.  for  Prevention  of  Cruelty  to  Children  v. 
Gilmore,  88  N.  Y.  626. 

43  Code  Civ.  Proc.  §  3376. 

44  Matter  of  New  York,  W.  S.  &  B.  R.  Co.,  94  N.  Y.  287,  294. 

45  Elmira  Realty  Co.  v.  Gibson,  103  App.  Div.  140,  92  N.  Y.  Supp.  913. 


3946  COSTS  ON  APPEAL.  §2857 


Art.  III.      Separate  Bills   of  Costs. 


one  appeal,  but  fail  as  to  the  other,  neither  party  will  be  given 
costs  upon  the  motion  to  dismiss ; 4G  but  costs  will  be  allowed 
against  appellant  on  the  dismissal  of  one  of  two  appeals  from 
the  same  judgment  on  two  separate  records  which  present  the 
same  question,  though  it  was  taken  from  an  abundance  of 
caution  to  make  certain  of  the  hearing  of  the  question  on  one 
record  or  the  other  and  to  settle  a  doubtful  point  of  practice 
and  the  appellant  is  successful  on  the  other  appeal.47 

§  2855.     On  cross-appeals. 

Where,  on  cross-appeals,  both  parties  succeed  in  part,  no 
costs  of  the  appeal  should  be  allowed  to  either.48 

ART.   III.     SEPARATE  BILLS  OF  COSTS. 

§  2856.     Several  appellants. 

Where  several  co-parties  appeal,  but  there  is  only  one  set  of 
papers,  one  argument,  and  one  judgment,  there  is  but  one 
appeal,  and  the  successful  party  is  entitled  to  but  one  bill  of 
costs,  notwithstanding  the  several  appellants  appeared  by  dif- 
ferent attorneys.49 

§  2857.     Several  respondents. 

In  an  action  against  two  or  more  defendants  who  appear 
separately  by  different  attorneys  but  set  up  substantially  the 
same  defense,  where  the  complaint  is  dismissed  and  separate 
bills  of  costs  taxed,  and  on  appeal  the  judgment  is  affirmed 
on  one  argument,  only  one  bill  of  costs  of  the  appeal  should 
be  taxed,  since  it  is  not  necessary  for  all  the  defendants  to 
print  points  or  prepare  for  argument.50 

4c  Hunt  v.  Wallis,  6  Paige,  371. 

47  Abbey  v.  Wheeler,  170  N.  Y.  122. 

48  Sherman  v.  Matthieu,  106  App.  Div.  368,  94  N.  Y.  Supp.  565. 

40  Everson  v.  Gehrman,  2  Abb.  Pr.  413.  See,  also,  Wilbur  v.  Wiltsey, 
13  How.  Pr.  506. 

so  De  Lamater  v.  Carman,  2  Daly,  182.  So  parties  who  jointly  demur 
or  answer,  and  jointly  succeed,  cannot  be  entitled  to  several  bills  of 
cost  on  appeal,  though  they  employ  different  attorneys  on  the  appeal. 


§  2860  COSTS  ON  APPEAL.  3947 

Art.  III.      Separate  Bills   of  Costs. 

§  2858.     Appeal  by  both  parties. 

Where  both  parties  appeal  in  a  common-law  action,  where 
the  right  to  costs  is  absolute  if  the  judgment  is  affirmed,  costs 
on  affirmance  should  be  awarded  in  favor  of  the  respondent  on 
each  appeal  with  a  provision  for  an  offset ; 51  but  where  the 
costs  are  discretionary,  the  affirmance  should  be  without  costs 
to  either  party.52  Where  both  parties  appeal  and  one  aban- 
dons his  appeal  and  the  other  fails  in  his  appeal,  neither  should 
have  costs  as  against  the  other.53  Where  the  plaintiff  fails 
utterly  in  his  appeal,  and  one  defendant  succeeds  on  his  appeal 
as  against  co-defendants,  instead  of  ordering  plaintiff  to  pay 
costs  to  defendants  appealed  against  and  they  to  their  co-de- 
fendant, the  court  of  appeals  will  direct  costs  against  plaintiff 
directly  in  favor  of  the  latter.54  One  who  takes  a  cross-ap- 
peal is  not  exonerated  from  paying  costs  on  affirmance  by  the 
fact  that  he  sought  and  argued  for  affirmance,  and  only  ap- 
pealed to  secure  an  expression  of  opinion  from  the  appellate 
court  in  ease  of  reversal.55 

§  2859.     Separate  appeals  by  co-parties. 

Upon  separate  appeals  by  different  defendants,  in  a  suit  to 
settle  the  right  to  a  fund  in  court,  costs  cannot  be  awarded  be- 
tween the  appellants,  unless  they  have  made  each  other  parties 
to  their  respective  appeals.56 

§  2860.     Appeal  from  two  or  more  orders. 

While  separate  bills  of  costs  are  proper  where  separate  ap- 

The  manner  in  which  they  answer  or  demur,  determines  the  question 
as  to  their  right  to  recover  separate  bills,  so  long  as  they  all  succeed  in 
the  action.     Wilbur  v.  Wiltsey,  13  How.  Pr.  506. 

51  Tompkins  County  Sup'rs  v.  Bristol,  58  How.  Pr.  3,  followed  in  Mar- 
tin v.  Tarbox,  23  Misc.  761,  51  N.  Y.  Supp.  319. 

52Kiah  v.  Grenier,  1  T.  &  C.  388,  393;  Delafield  v.  Village  of  West- 
field,  41  App.  Div.  24,  29,  58  N.  Y.  Supp.  277. 

53  Leftwich  v.  Clinton,  4  Lans.  176. 

54  Merchants'  &  Traders'  Nat.  Bank  v.  City  of  New  York,  97  N.  Y.  355. 

55  Tompkins  County  Sup'rs  v.  Bristol,  58  How.  Pr.  3. 
so  Potter  v.  Chapin,  6  Paige,  639. 


3948  COSTS  ON  APPEAL.  §  2862 


Art.    111.      Separate    Bills   of  Costs. 


peals  are  taken  from  different  orders,07  yet  it  would  seem  that 
where  one  appeal  is 'taken  from  two  or  more  orders  and  there  is 
but  one  set  of  papters  and  one  argument,  only  one  bill  of  costs 
should  be  allowed.DS  It  is  held,  however,  that  the  respondent 
is  entitled  to  costs  on  each  of  several  appeals  from  independent 
orders  taken  on  a  single  notice  of  appeal,  specifying  them 
all.59  Where  there  are  two  orders  of  the  same  date,  and  it  is 
uncertain  which  the  notice  of  appeal  meant  to  point  out,  but 
it  is  plain  that  the  appeal  is  only  taken  from  one,  costs  of  only 
one  appeal  can  be  allowed.00 

§  2861.     Appeal  from  judgment  and  from  order  denying  a 
new  trial. 

Where  a  judgment  and  an  order  denying  a  new  trial  are  ap- 
pealed from  and  heard  together  on  the  same  set  of  papers, 
costs  of  but  one  appeal  will  be  allowed.01  It  follows  that  if  the 
motion  for  a  new  trial  is  not  based  on  the  judge's  minutes,  two 
bills  of  costs  are  to  be  taxed,  since  in  such  a  case  the  appeal 
from  the  judgment  and  the  order  cannot  be  heard  on  the 
same  set  of  papers.02  This  is  the  proper  construction  to  be  put 
on  the  Code  provision  that  "where  an  appeal  is  taken  from  an 
order  refusing  a  new  trial,  and  an  appeal  is  also  taken  from 
the  judgment  rendered  on  the  trial,  neither  party  is  entitled 
to  the  costs  of  the  appeal  from  the  order."  63 

§  2862.     Where  two  or  more  actions  tried  as  one. 

Where  two  cases  were  practically  consolidated,  the  referee 

57  See  Fulton  Bank  v.  Beach,  2  Paige,  185. 

ss  See  Matter  of  Prospect  Park  &  C.  I.  R.  Co.,  67  N.  Y.  371,  378. 

so  Brassington  v.  Rohrs,  3  Misc.  262,  22  N.  Y.  Supp.  1053. 

eo  Stanton  v.  King,  76  N.  Y.  585. 

ei  Van  Alen  v.  American  Nat.  Bank,  10  Abb.  Pr.  (N.  S.)  331;  Bullard 
v.  Pearsall,  46  How.  Pr.  383;  West  v.  Lynch,  1  City  Ct.  R.  174.  And 
when  such  a  motion  is  denied  and  the  moving  party  appeals  from  the 
order  denying  it  as  well  as  from  the  judgment,  and  the  order  is  re- 
versed with  costs,  or  with  costs  to  abide  event,  the  costs  are  at  that 
rate,  notwithstanding  he  may  be  entitled  to  the  like  sum  on  his  appeal 
from  the  judgment.    Pilgrim  v.  Donnelly,  15  Abb.  N.  C.  240. 

c2  See  ante,  §  2725. 

63  Code  Civ.  Proc.  §  3239,  subd.  2. 


§  2865  COSTS  ON  APPEAL.  3949 


Art.  III.      Separate  Bills  of  Costs. 


making  but  a  single  report  in  both,  and  judgment  was  entered 
with  but  a  single  bill  of  costs,  and  the  judgment  affirmed  by 
the  appellate  division,  and  but  one  appeal  and  one  transcript 
taken  from  the  court  below,  upon  affirmance  in  the  court  of 
appeals,  there  can  be  but  one  bill  of  costs.04 

§  2863.     Where  action  is  severed. 

Full  costs  upon  both  appeals  may  be  recovered  where  the 
action  has  been  severed,  two'  judgments  entered,  and  two  ap- 
peals taken.05  Section  3231  of  the  Code  precluding  costs  in 
more  than  one  action,  in  certain  instances  where  two  or  more 
actions  are  brought  for  the  same  cause  of  action,  does  not  ap- 
ply to  the  costs  on  appeal.66 

§  2864.     Where   decision   is   to   abide   the   event   of   another 
appeal. 

Where  it  is  stipulated  that  the  decision  on  an  appeal  from 
an  order  in  an  action  stand  as  the  decision  on  the  appeals  from 
a  like  order  in  several  other  actions,  and  there  is  a  reversal 
with  costs,   costs  for  argument  in   each  case  may  be  taxed 

though  there  was  but  one  argument.67 

/ 

§  2865.     Where  motion  and  appeal  heard  at  same  time. 

It  seems  that  the  successful  party  is  entitled  to  the  costs  of 
the  appellate  division  on  exceptions  heard  there  in  the  first  in- 
stance and  to  separate  costs  on  appeal  from  an  order  denying 
a  motion  for  a  new  trial  in  a  common-law  action,  although  both 
were  heard  at  the  same  time.68 

64  King  v.  Brush,  5  Alb.  Law  J.  137. 

65  Pratt  v.  Allen,  19  How.  Pr.  450. 

66  Volume  3,  p.  2921.  If  one  defendant  demurs  and  one  answers,  and 
the  plaintiff  is  successful  in  both  cases,  he  is  entitled  to  two  bills  of 
costs  in  the  appellate  court,  though  only  to  one  in  the  lower  court. 
Pratt  v.  Allen,  19  How.  Pr.  450,  456. 

c7Hauselt  v.  Godfrey,  3  Civ.  Proc.  R.   (Browne)   116. 
esReichel  v.  New  York  Cent.  &  H.  R.  R.  Co.,  18  Civ.  Proc.  R.  (Browne) 
248,  29  State  Rep.  843,  9  N.  Y.  Supp.  414. 


3950  COSTS  ON  APPEAL.  §  2867 

Ail     IV.     Persons  Entitled  and  Liable,  and  Payment  from  Fund. 

§  2866.     Where  there  are  several  judgments  of  affirmance  by 
an  intermediate  court. 

Where  there  was  but  one  action  and  one  record,  only  one 
bill  of  costs  was  allowed  by  the  court  of  appeals  though  the 
record  contained  several  judgments  of  affirmance  by  the  ap- 
pellate division.09 


ART.    IV.        PERSONS    ENTITLED    AND    LIABLE,    AND    PAYMENT 

FROM   FUND. 

§  2867.     Persons  liable. 

In  the  trial  court,  persons  other  than  parties  to  the  action 
may  be  made  liable  for  costs,70  and  it  would  seem  that  this 
rule  applies  to  some  extent  to  the  costs  of  an  appeal.71  It  has 
been  held  that  where  the  costs  of  the  appeal  are  in  the  discre- 
tion of  the  court,  they  may  be  imposed  upon  any  party  to  the 
application,  reviewed  by  the  appeal,  although  such  party  be 
not  a  party  to  the  action.72  A  co-party  who  does  not  appeal 
cannot  be  charged  with  costs  of  the  appeal.73 

The  provision  of  Code  Civ.  Proc,  §  3247,  giving  costs  against 
one  "beneficially  interested,"  though  not  a  party  of  record, 
applies  only  to  the  interest  of  or  transfer  to  one  prosecuting 
an  appeal  and  not  to  one  responding  to  an  appeal.74 

eo  Veeder  v.  Mudgett,  95  N.  Y.  295,  315. 

•  o  Volume  3,  pp.  2943  et  seq. 

"i  On  appeal  from  an  order  vacating  an  attachment,  it  is  within  the 
discretion  of  the  court  to  direct  the  costs  of  appeal  to  be  paid  by  the  pe- 
titioner, though  he  did  not  have  any  personal  interest  in  the  prosecu- 
tion of  the  writ,  where  its  inception  was  due  to  him  and  he  was  in 
close  privity  therewith.  Matter  of  Bradner,  87  N.  Y.  171.  The  rule 
that  it  is  not  usual  to  allow  costs  against  the  wife  in  an  action  for 
divorce,  applied,  refusing  costs  of  a  successful  appeal  from  an  order 
adjudging  the  husband  in  contempt  for  nonpayment  of  alimony.  Men- 
del v.  Mendel,  4  State  Rep.  556,  25  Wkly.  Dig.  314. 

"Higgins  v.  Callahan,  2  Civ.  Proc.  R.   (Browne)   302,  10  Daly,  420. 

•  3  Tompkins  County  Sup'rs  v.  Bristol,  58  How.  Pr.  3. 

74  Peetsch  v.  Quinn,  12  Misc.  61,  66  State  Rep.  689,  24  Civ.  Proc.  R. 
(Scott)  394,  1  Am.  Cas.  282,  33  N.  Y.  Supp.  87.  See,  also,  Beck  v.  Kerr, 
87  App.  Div.  1,  83  N.  Y.  Supp.  1057. 


2869  COSTS  ON  APPEAL.  3951 


Art.  IV.     Persons  Entitled  and  Liable,  and  Payment  from  Fund. 


There  is  some  question  whether  the  Code  provision  authoriz- 
ing the  imposition  of  costs  against  a  representative  such  as  an 
executor,  administrator,  or  trustee,  to  be  paid  personally  and 
not  as  the  representative  of  an  estate,  applies  to  the  costs  of 
an  appeal.75 

§  2868.     Persons  entitled. 

Where  a  person  is  permitted  to  come  in  as  a  party,  pending 
the  appeal,  and  he  successfully  moves  to  have  the  case  stricken 
from  the  calendar  and  for  a  judgment  of  affirmance  because 
of  the  failure  of  appellant  to  print  and  serve  his  papers,  the 
moving  party  himself  is  entitled  to  the  costs.76  If  one  bill  of 
costs  is  awarded  to  two  successful  defendants,  and  the  judg- 
ment is  affirmed  as  to  one  without  costs  and  reversed  as  to 
the  other  with  costs  to  abide  the  event,  the  successful  defend- 
ant may  collect  the  costs  awarded  to  both  defendants  in  an 
action  on  the  undertaking  given  on  appeal.77 

§  2869.     Ordering  costs  to  be  paid  from  fund. 

The  costs  of  the  appeal,  as  well  as  the  costs  of  the  lower 
court,78  are  sometimes  ordered  to  be  paid  from  the  fund  in 
controversy  in  equity  cases,79  especially  on  appeals  from  a 
decree  of  a  surrogate.80 

75  Volume  3,  p.  2952. 

76  Sprague  v.  Richards,  30  Hun,  246. 

"  Fritchie  v.  Holden,  32  State  Rep.  276,  19  Civ.  Proc.  R.  (Browne) 
84,  11  N.  Y.  Supp.  171. 

78  Volume  3,  p.   2931. 

79  In  an  action  to  construe  a  will,  brought  by  the  executor,  the  costs 
may  be  ordered  paid  out  of  the  estate,  but  the  appellants  may  be 
charged  with  costs  if  several  appeals  are  taken.  McLean  v.  Freeman, 
70  N.  Y.  81,  89.  See  People  v.  American  Loan  &  Trust  Co.,  177  N.  Y. 
467,  472.  After  questions  arising  upon  the  construction  of  a  will  have 
been  fairly  decided  against  complainant  by  a  competent  tribunal,  and 
he  appeals,  he  ought  not,  except  under  very  special  circumstances,  to  be 
excused  from  payment  of  costs  upon  his  failure  in  the  appellate  court, 
and  to  be  allowed  to  throw  the  costs  of  the  adverse  parties  upon  a  fund 
belonging  exclusively  to  themselves.     Mowatt  v.  Carrow,  7  Paige,  328. 

so  Code  Civ.  Proc.  §  2589.  Whether  costs  should  be  imposed  on  trus- 
tee or  fund,  see  Matter  of  McCarter,  94  N.  Y.  558. 


3952  COSTS  ON  APPEAL.  §2870 


Art.   V.     Amount  and  Items. 


ART.  V.     AMOUNT  AND   ITEMS. 

§  2870.    Appeal  to  the  court  of  appeals. 

On  an  appeal  to  the  court  of  appeals,  thirty  dollars  are  al- 
lowed as  costs  before  argument  and  sixty  dollars  for  argu- 
ment, in  addition  to  term  costs  and  any  sum  awarded  as  dam- 
ages for  delay.sl  Nothing  can  be  taxed  as  costs  of  the  appeal 
except  the  costs  before  argument,  costs  of  argument,  term 
costs,  any  damages  allowed  for  delay,  and  disbursements,  and 
hence  nothing  can  be  taxed  for  making  and  serving  a  case.82 
The  same  amount  of  costs  are  allowed  on  an  appeal  from  an 
order  as  on  an  appeal  from  a  judgment.83  Full  costs  are  al- 
lowed though  the  appeal  is  heard  as  a  motion.84 

Where  an  appeal,  whether  from  an  order  or  a  judgment,  is 
dismissed  in  the  court  of  appeals,  with  costs,  after  a  submission 
for  decision  on  the  merits,  general  costs  of  an  appeal  follow, 
and  not  the  mere  costs  of  a  motion ; 85  but  a  dismissal  which  is 
the  result  of  a  preliminary  motion,  and  not  of  a  hearing  or 
a  motion  embodied  in  the  hearing,  does  not  carry  an  argument 
fee.86 

Term  fees.     Ten  dollars  is  allowed  for  each  term,  not 

exceeding  ten,  at  which  the  cause  is  on  the  calendar,  exclud- 
ing the  term  at  which  it  is  argued  or  otherwise  finally  disposed 
of.87  But  one  term  fee  can  be  charged  for  each  calendar  year, 
and  where  the  case  is  disposed  of  during  the  same  year  in 
which  it  first  appears  on  the  calendar  the  party  is  not  entitled 
to  tax  a  term  fee.ss     Term  fees  cannot  be  allowed  for  any  term 

si  Code  Civ.  Proc.  §  3251,  subd.  5. 

82  Shaver  v.  Eldred,  86  Hun,  51,  33  N.  Y.  Supp.  158. 

83  Brown  v.  Leigh,  52  N.  Y.  78;  Tauton  v.  Groh,  9  Abb.  Pr.  (N.  C.) 
453. 

84  Hall  v.  Emmons,  40  How.  Pr.  137. 

85  White  v.  Anthony,  23  N.  Y.  164. 

so  Matter  of  Wray  Drug  Co.,  93  App.  Div.  456,  87  N.  Y.  Supp.  676,. 
which  reviews  the  earlier  cases. 
87  Code  Civ.  Proc.  §  3251,  subd.  5. 
ss  Becker  v.  Metropolitan  El.  R.  Co.,  30  N.  Y.  Supp.  400;  Degener  v.. 


§  2871  COSTS  ON  APPEAL.  3953 


Art.  V.     Amount  and  Items. 


at  which  the  cause  was  noticed  prior  to  the  filing  of  the  re- 
turn.89 

Damages  for  delay.     Where  a  judgment  is  affirmed  by 

the  court  of  appeals,  the  court  may,  in  its  discretion,  also 
award  damages,  by  way  of  costs,  for  the  delay,  not  exceeding 
ten  per  cent  on  the  amount  of  the  judgment;  or  where  it  was 
rendered  on  an  appeal,  on  the  amount  of  the  original  judg- 
ment.90 Damages  for  delay  are  rarely  awarded,  and  should 
not  be  where  the  question  involved  is  not  free  from  difficulty,91 
i.  e.,  the  appeal  presents  debatable  questions,92  or  where  the  ap- 
pellant has  some  right  and  has  not  actually  caused  a  delay.93 

§  2871.    Appeal  to  the  supreme  court  or  appellate  division. 

"Costs  are  allowed  to  either  party  upon  an  appeal  to  the 
supreme  court,  from  an  inferior  court,  excepting  upon  an  ap- 
peal to  the  supreme  court  from  the  city  court  of  the  city  of 
New  York;  or  upon  an  appeal  to  the  appellate  division  of  the 
supreme  court  or  to  the  supreme  court  from  the  city  court  of 
the  city  of  New  York,  taken  from  an  interlocutory  or  final 
judgment,  or  from  an  order  granting  or  refusing  a  new  trial, 

Underwood,  62  State  Rep.  121,  31  Abb.  N.  C.  479,  30  N.  Y.  Supp.  399; 
Palmer  v.  De  Witt,  42  How.  Pr.  466;  Whiteman  v.  Leslie,  1  Month.  Law 
Bui.  50;  Powell  v.  New  York  Cent.  &  H.  R.  R.  Co.,  14  Civ.  Proc.  R. 
(Browne)  125,  3  N.  Y.  Supp.  763. 

89  Reformed  Protestant  Dutch  Church  v.  Brown,  24  How.  Pr.  89. 

'JOCode  Civ.  Proc.  §  3251,  subd.  5;  Cohen  v.  City  of  New  York,  128 
N.  Y.  594;  Warner  v.  Lessler,  33  N.  Y.  296.  Extra  costs  in  court  of  ap- 
peals for  delay  awarded  where  the  appellant  persisted  in  prosecuting 
an  appeal,  although  the  questions  involved  had  been  previously  deter- 
mined adversely  to  his  contention  in  an  appeal  in  another  action  against 
the  same  appellant.  Jackson  v.  City  of  Rochester,  124  N.  Y.  624.  Mode 
of  computation.  Adams  v.  Perkins,  25  How.  Pr.  368.  Where  the  court 
of  appeals,  on  affirming  a  judgment,  awards  a  percentage  of  damages 
to  the  respondent,  it  should  be  computed  upon  the  amounts  of  both 
judgments  below,  but  not  upon  the  accrued  interest  upon  the  judgments. 
Becker  v.  Metropolitan  El.  R.  Co.,  30  N.  Y.  Supp  400;  Degener  v.  Under- 
wood, 62  State  Rep.  121,  31  Abb.  N.  C.  479,  30  N.  Y  Supp  399. 

»i  Cuyler  v.  Stevens,  5  Wend.  93. 

02  Tisdale  v.  Delaware  &  H.  Canal  Co.,  116  N.  Y.  416. 

os  Blazy  v.  McLean,  146  N.  Y.  390. 

N.  Y.  Prac— 248. 


395i  COSTS  ON  APPEAL.  §  2871 


Art.   V.     Amount  and  Items. 


rendered  or  made  at  a  trial  term  of  the  supreme  court  or  of  the 
city  court  of  the  city  of  New  York:  *  *  *  Before  argu- 
ment, twenty  dollars.  For  argument,  forty  dollars.  *  *  * 
In  all  appeals  taken  under  section  3189  costs  awarded  to  the 
successful  party  shall  not  exceed  ten  dollars  in  addition  to 
the  taxable  disbursements."  °4 

For  ambiguity,  this  Code  provision  is  worthy  of  study.  As 
construed  by  the  cases,  however,  there  is  little  difficulty  in  its 
application.  First,  it  is  held  that  full  costs  are  to  be  taxed 
on  an  appeal  from  the  county  court  though  the  appeal  is  from 
an  order,95  and  while  such  a  holding  seems  to  be  a  proper  con- 
struction of  the  provision  yet  the  purpose  of  the  legislature 
in  allowing  full  costs  in  such  a  case  when  only  motion  costs 
are  allowed  on  an  appeal  to  the  appellate  division  from  an 
order  made  at  the  trial  or  special  term,  except  on  appeal  from 
an  order  granting  or  refusing  a  new  trial,  is  not  clear.90  Sec- 
ond, it  was  formerly  held  that  on  an  appeal  from  an  order 
of  the  city  court  of  New  York,  the  prevailing  party  was  en- 
titled to  the  same  costs  as  on  an  appeal  from  a  judgment,97  but 
the  last  sentence  of  the  above  Code  provision,  which  was  added 
by  amendment  in  1902,  limits  the  amount  of  costs  on  appeal 
from  orders  of  the  city  court  of  New  York,  though  it  has  re- 
cently been  held  that  it  does  not  limit  the  amount  of  costs  on 
an  appeal  from  an  interlocutory  judgment.98 

The  words  "trial  term,"  as  used  in  the  Code  provision,  are 

94  Code  Civ.  Proc.  §  3251,  subd.  4.  The  omitted  portions  of  the  Code 
provision  relate  to  term  fees  and  to  costs  on  original  motions  in  the 
appellate  division  not  connected  with  an  appeal  Applies  to  interlocu- 
tory judgment  entered  on  overruling  or  sustaining  a  demurrer.  Van 
Gelder  v.  Van  Gelder,  13  Hun,  118.  The  court  has  no  discretion  to 
change  the  amount.  Roberson  v.  Rochester  Folding  Box  Co.,  68  App. 
Div.  528,  73  N.  Y.  Supp.  898. 

as  Order  granting  trial  on  the  judge's  minutes.  Cusick  v.  Adams, 
47  Hun,  455. 

96  Motion  costs  only  on  appeal  from  order  'made  at  trial  or  special 
term.    Phipps  v.  Carman,  26  Hun,  518. 

•t  Burnell  v.  Coles,  26  Misc.  378,  56  N.  Y.  Supp.  208. 

as,  99  Campbell  v.  Hallihan,  46  Misc.  409,  92  N.  Y.  Supp.  413. 


§  2S71  COSTS  ON  APPEAL.  3955 


Art.   V.     Amount  and  Items. 


used  in  their  broad  sense  and  do  not  exclude  from  its  applica- 
tion judgments  rendered  at  special  term." 

Costs  for  argument.     Consent  to  a  withdrawal  of  the 

appeal,  after  argument,  waives  the  right  to  costs  for  argu- 
ment.100 The  submission  of  an  appeal  by  consent,  without  oral 
argument,  is  an  "argument"  within  this  section,  so  that  the 
fee  for  argument  can  be  taxed  as  if  there  actually  had  been 
an  oral  argument.101  Two  argument  fees  may  be  allowed  when' 
a  reargument  was  caused  by  no  act  or  omission  of  the  party 
taxing  them.102  Where  a  reargument  de  novo  is  ordered  to 
enlighten  a  justice  of  the  appellate  division  assigned  thereto 
after  the  first  argument  and  the  allowance  of  a  reargument, 
the  successful  party  is  entitled  to  tax  a  fee  for  the  reargument 
as  well  as  for  the  original  argument.103  "Where  judgment  for 
p]aintiff  is  affirmed  and  then,  on  reargument,  reversed  with 
costs  to  abide  the  event,  and  he  succeeds  on  a  new  trial,  the 
costs  on  both  arguments  on  appeal  are  taxable  against  defend- 
ant, but  only  one  item  of  costs  before  notice  of  argument.104 

Term  fees.  The  party  entitled  to  costs  may  tax  ten  dol- 
lars for  each  term,  not  exceeding  five,  of  the  appellate  division, 
at  which  the  cause  is  necessarily  on  the  calendar,  excluding 
the  term  at  which  it  is  argued  or  otherwise  finally  disposed 
of.105  A  term  fee  is  not  allowable  on  an  appeal  from  an 
order.106  Term  fees  are  not  allowable  for  terms  when  the 
case  was  improperly  on  the  calendar  and  not  in  a  condition  to 
be  argued,107  as  where  the  case  has  not  been  printed  nor  the 
appeal  made  ready  for  argument.108 

looLosee  v.  Billiard,  54  How.  Pr.  319,  322. 
ioi  Malcolm  v.  Hamill,  65  How.  Pr.  319,  322. 

102  Guckenheimer  v.  Angevine,  16  Hun,  453. 

103  Roberson  v.  Rochester  Folding  Box  Co.,  68  App.  Div.  528,  73  N.  Y. 
Supp.  898. 

[04  Miller  v.  King,  32  App.  Div.  349,  52  N.  Y.  Supp.  1041. 

105  Code  Civ.  Proc.  §  3251,  subd.  4.  By  the  1902  amendment  of  this 
subdivision  this  clause  does  not  apply  to  appeals  to  the  supreme  court 
from  an  order  for  interlocutory  judgment)  of  the  city  court  of  New 
York. 

loeEnnis  v.  Wilder,  14  Wkly.  Dig.  211. 


;;;i,l(;  COSTS  ON  APPEAL.  §  2871 

Art.   V.     Amount  and  Items. 

Appeal  from  order  in  special  proceedings.     It  is  not  en- 


tirely clear  as  to  what  costs  are  allowable  on  an  appeal  from 
an  order  in  a  special  proceeding.  The  Code  provides  that  the 
costs  on  an  appeal  from  an  order  in  a  special  proceeding  are 
to  be  awarded  at  the  rates  allowed  on  an  appeal  from  a  judg- 
ment, except  where  the  costs  are  specially  regulated  by  the 
Code.109  There  are  cases  holding  that  full  costs  may  be  taxed 
and  uot  merely  motion  costs,110  though  there  is  authority  to 
the  contrarj^.111 

Appeal  transferred  from  county  court.     The  fact  that 

an  appeal  to  the  county  court  from  a  justice's  court  is  trans- 
ferred to  the  supreme  court  by  reason  of  the  disqualification 
of  the  county  judge  does  not  make  it  an  appeal  to  the  supreme 
court,  and  the  prevailing  party  is  not  entitled  to  costs  as  of 
such  an  appeal,  but  only  of  an  appeal  to  the  county  court.112 

Dismissal  of  appeal.     On  dismissal  with  costs  after  an 

argument  on  the  merits,  respondent  is  entitled  to  general  costs 
and  not  merely  the  costs  of  a  motion  to  dismiss,113  but  on  dis- 

107  Nobis  v.  Pollock,  18  Civ.  Proc.  R.  (Browne)  1,  13  N.  Y.  Supp.  837. 

los  Van  Gelder  v.  Hallenbeck,  14  Civ.  Proc.  R.  (Browne)  333,  18  State 
Rep.  19,  2  N.  Y.  Supp.  252. 

loo  The  amount  of  costs  is  specially  regulated  by  the  Code  in  supple- 
mentary proceedings.  Jones  v.  Sherman,  11  Civ.  Proc.  R.  (Browne) 
416.  It  is  held,  however,  that  in  a  proceeding  by  certiorari  to  review 
an  assessment  where  an  appeal  by  the  relator  is  sustained,  the  pro- 
visions of  L.  1880,  c.  269,  govern  the  award  of  costs  and  the  costs  of 
appeal  allowed  him  are  to  be  taxed  as  on  appeal  from  orders  under 
Code  Civ.  Proc.  §  3239,  and  not  as  in  actions  under  section  3240.  Peo- 
ple ex  rel.  Oak  Hill  Cemetery  Ass'n  v.  Pratt,  67  Hun,  578,  50  State 
Rep.  355,  21  N.  Y.  Supp.  853;  jt.  aff.  138  N.  Y.  655.  Prior  to  the  amend- 
ment of  section  1340  of  the  Code,  in  1881,  it  was  held  that  only  motion 
costs  were  recoverable.  Matter  of  New  York  P.  B.  Public  School,  24 
Hun,  367.  Code  Civ.  Proc.  §  1240;  Everall  v.  Lassen,  13  Daly,  10.  This 
applies  to  costs  in  mandamus  proceedings.  People  ex  rel.  Bray  v. 
County  Sup'rs,  65  How.  Pr.  327. 

no  People  ex  rel.  Bray  v.  Ulster  County  Sup'rs,  65  How  Pr.  327;  Cole 
v.  Terpenning,  27  Hun,  111. 

in  Walsh  v.  Van  Allen,  36  Hun,  629. 

i-i-'  O'Callaghan  v.  Carroll,  16  How.  Pr.  327;  McLaughlin  v.  Smith, 
3  Hun,   250. 

us  Webb  v.  Norton,  10  How.  Pr.  117. 


g  2873  COSTS  ON  appeal.  3957 


Art.   V.     Amount  and  Items. 


missing  an  appeal  on  motion,  the  appellate  division  114  cannot 
allow  an  argument  fee,  but  only  motion  costs.  Where  an  ap- 
peal is  dismissed  unless  the  case  is  served  and  the  cause  put 
on  the  calendar  of  a  certain  term,  and  the  appellant  fails  so  to 
do,  the  respondent  cannot  thereafter  put  the  case  on  the  cal- 
endar and  have  a  judgment  of  affirmance  by  default  entered  so 
as  to  be  able  to  tax  a  full  bill  of  costs,  but  is  entitled  only  to 
motion  costs,  i.  e.,  ten  dollars.115 

§  2872.     Charge  for  making  case. 

The  charge  of  twenty  dollars  for  making  a  case  is  not  allow- 
able where  no  case  is  made,  though  the  evidence  taken  before 
a  referee  is  printed,116  nor  where  the  appeal  is  from  an  order 
in  a  special  proceeding  which  is  not  heard  on  a  case.117  No 
charge  for  making  a  case  is  allowable  on  an  appeal  to  the  court 
of  appeals. 

§  2873.     Disbursements. 

The  general  rules  laid  down  in  a  preceding  volume  as  to  dis- 
bursements 11S  apply  to  disbursements  on  appeal.119  If  an 
"order"  is  affirmed  or  reversed  "with  costs,"  only  ten  dollars 
costs  can  be  taxed,  since  disbursements  cannot  be  taxed  on  ap- 

n4Dunseith  v.  Stark,  3  Month.  Law  Bui.  42;  Matter  of  George  B. 
Wray  Drug  Co.,  93  App.  Div.  456,  87  N.  Y.  Supp.  676.  A  respondent 
who  might  have  had  the  appeal  dismissed  on  motion  will  not  be  al- 
lowed costs  on  its  dismissal  at  the  hearing.  Williams  v.  Pitch,  15  Barb. 
654.  On  dismissing  an  appeal  for  want  of  jurisdiction,  the  general 
costs  cannot  be  awarded.  People  ex  rel.  Mallard  v.  Judges  of  Madison 
County,  7  Cow.  423. 

nsMahon  v.  Mahon,  64  App.  Div.  262,  72  N.  Y.  Supp.  102.  Compare, 
as  contra,  Sprague  v.  Richards,  30  Hun,  246. 

us  Lazarus  v.  Danziger,  27  Abb.  N.  C.  147,  16  N.  Y.  Supp.  200. 

J"  Matter  of  Board  of  Street  Opening  &  Improvement,  34  App.  Div. 
500,  54  N.  Y.  Supp.  911. 

us  Volume  3,  pp.  2977,  2978. 

no  Interest  on  judgment  may  be  taxed  as  costs.  Buck  v.  City  of 
Lockport,  43  How.  Pr.  283. 


3958  COSTS  ON  APPEAL.  §  2873 

Art.  V.     Amount  and  Items. — Disbursements. 

peal  from  an  order  unless  the  order  of  affirmance  or  reversal 
specifically  includes  them.lli0 

Printing'  expenses.  The  "reasonable  expense  of  print- 
ing the  papers  for  a  hearing,  when  required  by  a  rule  of 
court,"  is  chargeable  as  a  disbursement,121  and  this  includes 
the  cost  of  printing  papers  and  points  on  appeal.122  The 
amount  paid  is  the  sum  to  be  taxed,  in  the  absence  of  any  show- 
ing that  the  sum  charged  was  fraudulently  or  collusively  ex- 
aggerated, or  more  than  the  usual  charge  at  the  place  of  the 
plaintiff's  residence,  for  such  services.123  Where  the  printed 
copies  of  case  used  on  appeal  to  the  appellate  division,  are  used, 
on  a  further  appeal  to  the  court  of  appeals,  the  appellants  will 
only  be  allowed  to  charge  for  necessary  additional  papers  and 
for  the  expense  of  printing  the  necessary  additional  copies.124 
If  respondent  is  allowed  by  order  to  print  additional  papers, 
he  cannot  tax  the  costs  of  printing  papers  not  referred  to  in 
that  order.125  An  order  reducing  the  amount  allowed  by  the 
clerk  is  discretionary.120     Where  several  parties  unite  in  an 

isocassidy  v.  McFarland,  139  N.  Y.  201,  209,  followed  in  Bolte  v. 
Dieckman,  58  App.  Div.  85,  68  N.  Y.  Supp.  444.  On  the  granting  of  an 
order  dismissing  an  appeal  for  failure  to  serve  printed  appeal  papers, 
with  $10  costs  of  motion,  and  affirming  the  order  appealed  from  "with 
costs  of  this  appeal  to  be  taxed  by  the  clerk  of  this  court,"  the  clerk 
had  no  authority  to  tax  in  addition  to  the  $10  motion  costs,  and  $10 
costs  of  the  appeal,  an  amount  for  disbursements.  Zinsser  v.  Herrman, 
24  Misc.  689,  53  N.  Y.  Supp.  778;  Burnell  v.  Coles,  26  Misc.  378,  56  N. 
Y.  Supp.  208. 

121  Code  Civ.  Proc.  §  3256. 

122  Erie  R.  Co.  v.  Ramsey,  10  Abb.  Pr.  (N.  S.)  109.  Only  the  requisite 
number  of  copies  can  be  charged  for.  Byrnes  v.  Labagh,  12  Civ.  Proc. 
R.  (Browne)  417.  Agreement  with  printer  contingent  on  appellant's 
success  on  the  appeal  does  not  preclude  taxing  the  cost  of  printing.  Van 
Gelder  v.  Hallenbeck,  15  Civ.  Proc.  R.  (Browne)  333,  2  N.  Y.  Supp.  252. 

123  Salter  v.  Utica  &  B.  R.  R.  Co.,  86  N.  Y.  401.  Price  paid  is  the  sum 
to  be  taxed.  Potter  v.  Carpenter,  56  How.  Pr.  89.  Contra,  Consalus  v. 
Brotherson,  54  How.  Pr.  62,  which  holds  that  the  usual  expense,  though 
more  than  the  sum  paid,  is  the  sum  to  be  taxed. 

124  Potter  v.  Carpenter,  56  How.  Pr.  89. 

125  Stubbs  v.  Ripley,  7  State  Rep.  478. 

i26Corbett  v.  De  Comeau,  45  Super.  Ct.  (13  J.  &  S.)  587. 


§  2874  COSTS  ON  appeal.  3959 

Art.  V.     Amount  and  Items.- — Disbursements. 

appeal,  and  only  a  part  are  successful,  the  successful  appel- 
lants, who  have  been  allowed  costs,  cannot  tax  the  charge  for 
printing,  where  there  was  but  one  appeal  book  and  one  set  of 
papers,  without  proof  that  they  themselves,  and  not  the  unsuc- 
cessful appellants,  incurred  the  expense.127 

No  charge  for  printing  the  case  and  points  and  other  papers 
furnished  in  the  court  of  appeals  shall  be  charged  as  a  dis- 
bursement unless  it  is  shown  by  affidavit  that  the  papers  are 
properly  folioed  and  printed  in  solid  small  pica,  as  required 
by  rule  five  of  the  court  of  appeals.128 

§  2874.    Increased  costs. 

The  Code  provision  relating  to  increased  costs — often  re- 
ferred to  as  double  costs — has  been  set  forth  in  a  preceding 
volume,120  and  considered  in  connection  with  the  decisions  as 
to  defendant's  right  to  costs  and  one-half  in  certain  actions. 
This  provision,  it  is  held,  extends  to  costs  of  an  appeal  to  the 
court  of  appeals,  the  appellate  division  or  the  supreme  court,130 
but  not  to  an  appeal  to  the  county  court.131  The  right  to  in- 
creased costs  is  limited  to  where  the  officer  succeeds  as  a  re- 
spondent and  does  not  apply  to  a  case  where  he  succeeds  as  an 
appellant.132  In  such  actions  where  the  statute  provides  for 
such  costs,  it  is  unnecessary  that  they  should  be  mentioned 
by  the  appellate  court  in  their  decision.  The  statute  leaves 
no  discretionary  power,  but  provides  absolutely  for  the  amount 

127  Kane  v.  Metropolitan  El.  R.  Co.,  15  Daly,  366,  7  N.  Y.  Supp.  653. 

128  Rule  5  of  the  court  of  appeals. 

129  Volume  3,  pp.  2990  et  seq. 

130  Wood  v.  Com'rs  of  Excise,  9  Misc.  507,  30  N.  Y.  Supp.  344. 
isi  Shaver  v.  Eldred,  86  Hun,  51,  33  N.  Y.  Supp.  158. 

132  Scott  v.  Farley,  3  Month.  Law  Bui.  29;  Foster  v.  Cleveland,  6  How. 
Pr.  253;  Heimers  v.  Davidson,  2  City  Ct.  R.  308.  After  recovery  in  a 
justice's  court  against  defendant,  a  public  officer,  who  defended  his  acts 
as  such,  appealed  to  the  county  court,  and  the  judgment  being  reversed, 
plaintiff  appealed  to  the  supreme  court,  where  the  latter  decision 
was  affirmed.  Held,  that  defendant  was  not  entitled  to  double  costs  on 
the  first  appeal,  but  was  on  the  second.  "Wheelock  v.  Hotchkiss,  18  How. 
Pr.  468. 


;<,.),;,)  COSTS  ON  APPEAL.  §  2877 


Art.    VI.     Procedure   in  Lower  Court. 


of  costs  to  be  taxed,  and  it  remains  only  for  the  clerk  to  adjust 
the  same,  and  include  them  in  the  judgment.133 

§  2875.    Additional  allowances. 

The  appellate  court  itself  cannot  grant  an  additional  allow- 
ance as  costs,  except  on  appeals  from  a  surrogate's  court  to  the 
appellate  division.134  But  where  the  appellate  court  awards  to 
a  party  costs  in  the  trial  court,  the  award  carries  with  it  not 
only  the  taxable  costs  and  disbursements,  but  such  further  sum, 
if  any,  by  way  of  an  extra  allowance,  as  the  trial  court,  in  the 
exercise  of  a  sound  discretion,  may  award.135 

ART.  VI.     PROCEDURE  IN  LOWER  COURT. 
(A)      CONSTRUCTION  OF  ORDER  OF  APPELLATE  COURT. 

§  2876.     General  considerations. 

There  is  considerable  diversity  of  opinion,  as  to  the  con- 
struction to  be  given  to  an  order  allowing  or  withholding  costs 
or  awarding  them  to  abide  the  event,  where  the  award  of  costs 
is  discretionary.  It  has  been  said  that  each  court  will  con- 
strue its  own  order  in  accordance  with  what  was  intended  in 
the  particular  case  before  it,  rather  than  in  pursuance  of  any 
settled  rule  of  construction,  and  with  that  construction  a  higher 
court  will  not  interfere.136 

Except  in  the  following  section,  all  the  cases  considered  in 
this  article  are  where  the  costs  are  discretionary,  and  not  a 
matter  of  right,  in  the  trial  court. 

§  2877.    Where  costs  are  a  matter  of  right  in  the  trial  court. 

There  is  little  difficulty  in  determining  the  right  to  costs 

after  an  appeal  from  a  judgment  in  a  common-law  action  in 

133  Carpentier  v.  Willett,  26  Super.  Ct.  (3  Rob.)  700,  28  How.  Pr.  376. 

184  On  appeal  from  surrogate's  court,  see  Dupuy  v.  Wurtz,  3  T.  &  C. 
113;  Seguine  v.  Seguine,  3  Abb.  Pr.  (N.  S.)  442. 

135  Hascall  v.  King,  165  N.  Y.  288;  Barnard  v.  Hall,  143  N.  Y.  339. 

iseDurant  v.  Obendroth,  48  Hun,  16,  1  N.  Y.  Supp.  538;  Union  Trust 
Co.  v.  Whiton,  78  N.  Y.  491,  affirming  17  Hun,  593. 


I  2ST7  COSTS  ON  APPEAL.  3961 


Art.  VI.     Procedure   in  Lower  Court. 


which  the  prevailing  party  is  entitled  to  costs  in  the  trial  court 
as  a  matter  of  right.  Where  costs  follow  as  a  matter  of 
course,  on  appeals  from  final  judgments  in  common-law  actions, 
where  a  new  trial  is  not  granted  nor  the  judgment  reversed  in 
part  and  affirmed  in  part,  the  addition  to  a  judgment  of  the  ap- 
pellate court  of  the  words  "with  costs"  or  "without  costs"  is 
surplusage  and  cannot  affect  the  right  of  the  prevailing  party  to 
costs  of  the  trial  court  and  of  all  the  appellate  courts.137  If  the 
judgment  is  wholly  reversed  or  affirmed  by  the  court  of  appeals, 
the  costs  not  only  of  the  trial  court  but  also  of  the  appellate  di- 
vision follow  as  a  matter  of  course  notwithstanding  the  disposi- 
tion of  costs  in  the  appellate  division.  For  instance,  if  the  ac- 
tion is  one  in  which  costs  are  a  matter  of  right,  a  plaintiff  is  en- 
titled to  tax  the  costs  in  the  appellate  division  though  they  were 
awarded  to  the  defendant  to  abide  the  event,  when  the  court 
of  appeals  orders  judgment  for  the  plaintiff  with  costs.138 
Where  a  judgment  for  defendant  in  a  common-law  action  is  af- 
firmed by  the  appellate  division  but  reversed  by  the  court  of 
appeals  with  costs  to  abide  the  event,  and  plaintiff  finally  re- 
covers, he  is  entitled  to  costs  of  the  appellate  division  as  well 
as  the  trial  costs  and  the  costs  of  the  court  of  appeals.139  So 
where  plaintiff  obtains  a  verdict  exceeding  the  sum  of  fifty  dol- 
lars in  an  action  for  the  recovery  of  money  only,  and  the  judg- 
ment upon  it  is  reversed  and  a  new  trial  ordered,  with  costs  to 
the  defendant  to  abide  the  event,  and  this  order  is  reversed  by 
the  court  of  appeals  and  the  judgment  affirmed,  the  plaintiff  is 
entitled  to  the  costs  of  the  appeal  to  the  appellate  division  as 
well  as  the  other  costs.140  Where,  on  the  first  trial  in  ejectment, 
a  judgment  for  plaintiffs  was  reversed  "with  costs  to  the  appel- 
lants to  abide  the  event,"  and  a  second  judgment  for  plaintiffs 

137  See  ante,  §  2845. 

iss  Murtha  v.  Curley,  92  N.  Y.  359. 

139  Donovan  v.  Vandemark,  22  Hun,  307.  But  see  Bigler  v.  Pinkney, 
24  Hun,  224,  where  the  contrary  was  held  where  the  court  of  appeals 
granted  a  new  trial  with  costs  "of  the  appeal  to  this  court"  to  abide  the 
event. 

i*o  Revere  Copper  Co.  v.  Dimmock,  29  Hun,  299. 


3962  COSTS  ON  APPEAL.  §  287? 


Art.  VI.     Procedure   in  Lower  Court. 


was  affirmed,  and  thereafter  defendants  moved  for,  and  ob- 
tained, a  statutory  new  trial  on  paj^ment  of  all  costs,  and  the 
new  trial  resulted  in  favor  of  defendants,  the  costs  of  the  first 
appeal  should  be  taxed  in  favor  of  defendants.141 

Where  costs  are  a  matter  of  right  because  the  judgment 
finally  recovered  was  less  favorable  than  that  offered  by  the 
defendant,  but  costs  in  the  court  of  appeals  are  discretionary 
because  the  judgment  is  reversed  in  part  and  affirmed  in  part, 
and  the  court  of  appeals  exercises  such  discretion  by  ordering 
that  neither  party  recover  costs  against  the  other  in  that  court, 
the  defendant  is  entitled  to  the  costs  of  the  trial  and  of  the 
appellate  division.142  If  the  judgment  entered  on  the  judgment 
of  the  court  of  appeals  is  for  less  than  the  offer  made  by  de- 
fendant though  the  original  judgment  was  for  more  than  the 
offer,  costs  after  the  offer  cannot  be  awarded  to  plaintiff.143 

Where  a  recovery  by  plaintiff  for  less  than  fifty  dollars  so 
that  defendant  was  entitled  to  costs  is  reversed  on  appeal  with 
costs  to  abide  the  event,  and  plaintiff  recovers  more  than  fifty 
dollars  on  the  second  trial,  he  is  entitled  to  tax  the  costs  and 
disbursements  of  the  first  trial  as  well  as  of  the  appeal  and  the 
second  trial.144  The  fact  that  interest  must  be  added  to  make 
the  judgment  on  the  second  trial  more  than  fifty  dollars  does 
not  preclude  the  taxing  of  costs  in  favor  of  plaintiff  where 
costs  are  ordered  to  abide  the  event.145  So  where  an  affirmance, 
with  costs,  of  a  judgment  for  defendant  is  reversed  by  the  court 
of  appeals  with  "costs  to  abide  the  event"  and  plaintiff  recov- 
ers on  the  second  trial  a  sum  less  than  fifty  dollars  so  that  de- 
fendant is  entitled  to  costs,  defendant  may  tax  the  costs  of  both 
trials  and  both  appeals,  and  is  not  limited  to  costs  of  the  court 
of  appeals  and  of  the  second  trial.146 

i«  Barson  v.  Mulligan,  44  Misc.  26,  89  N.  Y.  Supp.  704. 
142  Sturgis  v.  Spofford,  58  N.  Y.  103. 
I"  Bathgate  v.  Haskin,  63  N.  Y.  261. 

144  Carpenter  v.  Manhattan  Life  Assur.  Co.,  25  Hun,  194. 

145  Loring  v.  Morrison,  25  App.  Div.  139,  48  N.  Y.  Supp.  975. 

140  Isaacs  v.  New  York  Plaster  Works,  43  Super.  Ct.  (11  J.  &  S.)  397, 
4  Abb.  N.  C.  4. 


§  28  IS  COSTS  ON  APPEAL.  3963 

Art.  VI.     Procedure  in  Lower  Court. 

§  2878.     Reversal  or  affirmance  "with  costs." 

The  appellate  court,  when  it  reverses  or  affirms  "with  costs" 
and  is  silent  as  to  what  costs  are  meant,  usually  intends  merely 
the  costs  of  the  appellate  court,  where  the  action  is  one  in 
which  costs  are  discretionary.  Of  course,  if  the  action  is  one 
in  which  the  costs  are  a  matter  of  course,  the  order  has  no 
effect  either  as  to  the  costs  of  the  trial  court  or  of  the  appellate 
court.  A  reversal,  "with  costs,"  by  the  supreme  court  of  the 
United  States,  has  been  held,  in  a  particular  case,  not  to  author- 
ize an  award  of  costs  in  any  of  the  state  courts.147 

Order   of   appellate   division.     It  has   been   held   that 

where,  in  an  equity  case,  the  appellate  division  reverses  "with 
costs,"  and  dismisses  the  complaint,  the  costs  both  of  the  trial 
and  of  the  appeal  are  meant,148  but  that  an  affirmance  "with 
costs"  carries  only  the  costs  of  the  appeal,  where  the  lower 
court  had  dismissed  the  complaint  without  costs.149  In  the  sec- 
ond and  third  departments  of  the  appellate  division,  however, 
it  has  been  held  that  where  plaintiff's  judgment  at  special  term 
"without  costs"  is  reversed  and  the  complaint  dismissed  by 
the  appellate  division  "with  costs,"  defendant  is  entitled  to 
costs  of  the  appeal  but  not  to  any  costs  at  special  term.150  An 
affirmance  of  an  order  dismissing  without  costs  a  writ  of  cer- 
tiorari, which,  in  terms  ' '  ordered  that  the  said  order  be  and  the 
same  is  hereby  wholly  affirmed  with  costs"  has  been  held  to 
carry  not  only  the  costs  of  appeal,  but  also  to  be  a  direction 
that  the  respondents  recover  costs  as  in  an  action.151  It  will  be 
observed  that  the  decisions  are  far  from  harmonious,  which  is 

147  Stevens  v.  Central  Nat.  Bank,  168  N.  Y.  560,  which  reversed,  on 
this  point,  35  App.  Div.  35,  54  N.  Y.  Supp.  673. 

1*8  Schoonmaker  v.  Bonnie,  51  Hun,  34,  3  N.  Y.  Supp.  492.  See  Bo- 
gardus  v.  Rosendale  Mfg.  Co.,  8  Super.  Ct.  (1  Duer)  592. 

149  Id. 

i5o  Hurley  v.  Brown,  55  App.  Div.  8,  67  N.  Y.  Supp.  279.  Upon  the 
reversal  of  an  order  rendered  at  special  term  dismissing  proceedings 
taken  for  a  street  opening,  which  allowed  no  costs  to  the  landowner,  the 
order  of  the  appellate  division  awarded  costs  and  disbursements.  Held, 
that  costs  of  the  appeal  only  could  be  taxed.  Matter  of  Board  of  Street 
Opening  &  Improvement,  34  App.  Div.  500,  54  N.  Y.  Supp.  516. 

i5i  Wood  v.  Com'rs  of  Excise,  9  Misc.  507,  30  N.  Y.  Supp.  344. 


396  I  COSTS  ON  APPEAL.  §  2578 


Art.   VI.     Procedure  in  Lower  Court. 


partly  the  result  of  each  department  of  the  appellate  division 
considering  itself  not  bound  by  the  decisions  in  any  other  de- 
part incut.  No  general  rule  can  be  laid  down  and  with  the  law 
in  such  a  condition  it  would  seem  advisable  to  always  have  the 
order  explicit  as  by  reading  "with  costs  of  this  court  to  the 
appellant  and  with  (or  'without')  the  costs  of  the  trial  (or 
'special')  term  (or  'of  the  county  court'  or  'of  the  city  court 
of  the  city  of  New  York')." 

Order  of  court  of  appeals.     The  words  "with  costs"  in 

an  order  of  reversal  or  affirmance  in  the  court  of  appeals,  in  a 
case  where  the  allowance  of  costs  is  discretionary,  give  costs  in 
that  court  only,152  except  that  when  the  appellate  court  as- 
sumes to  deal  with  the  whole  subject  and  wipes  out  and  re- 
verses the  judgment  or  decree  appealed  from  with  costs,  that 
includes  all  the  costs  of  all  the  inferior  courts.153  If  the  party 
who  is  successful  in  the  court  of  appeals  has  been  unsuccessful 
in  the  trial  court,  or  in  the  trial  court  and  the  appellate  di- 
vision, and  judgment  absolute  is  ordered  in  his  favor  in  the 
court  of  appeals,  with  costs,  he  does  not  thereby  become  en- 
titled to  the  costs  of  the  trial  or  special  term  or  the  appellate 
division,  but  he  must  apply  to  those  courts  respectively  for 
the  costs  in  such  courts.154  For  instance,  where  the  appellate 
division,  in  an  equitable  action,  reverses  a  dismissal  of  the 
complaint  and  orders  a  new  trial  with  costs  to  abide  the  event, 

152  Sisters  of  Charity  v.  Kelly,  G8  N.  Y.  628;  Byrnes  v.  Baer,  13  Wldy. 
Dig.  128;  Matter  of  Protestant  Episc.  Pub.  School,  86  N.  Y.  396;  People 
v.  Mercantile  Credit  Guaranty  Co.,  35  Misc.  755,  72  N.  Y.  Supp.  373; 
People  ex  rel.  Morris  v.  Randall,  8  Daly,  81;  Matter  of  Water  Com'rs  of 
Amsterdam,  104  N.  Y.  677;  Matter  of  Hood,  17  State  Rep.  705,  49  Hun, 
608,  1  N.  Y.  Supp.  833;  Price  v.  Price,  61  Hun,  604,  41  State  Rep.  399, 
16  N.  Y.  Supp.  359.  Rule  applies  where  appellate  division  has  made 
no  award  of  costs.  Newcomb  v.  Hale,  12  Abb.  N.  C.  338,  64  How.  Pr. 
400,  4  Civ.  Proc.  R.  (Browne)  25,  dist'g  Sanders  v.  Townshend,  63  How. 
Pr.  343,  11  Abb.  N.  C.  217. 

153  Matter  of  Hood,  30  Hun,  472.  So  held  on  appeal  from  order  in 
special  proceedings.  Matter  of  New  York,  W.  S.  &  B.  R.  Co.,  28  Hun,  505. 

is*  Helck  v.  Reinheimer,  14  State  Rep.  465,  28  Wkly.  Dig.  347.  Costs 
of  appellate  division  cannot  be  granted  at  special  term  but  application 
must  be  made  to  the  appellate  division.  People  ex  rel.  Keene  v.  Queens 
County  Sup'rs,  83  Hun,  237,  31  N.  Y.  Supp.  569. 


§  2578  COSTS  ON  APPEAL.  3955 

Art.  VI.     Procedure   in  Lower  Court. 

and  the  court  of  appeals  affirms  the  appellate  division  and 
awards  judgment  absolute,  with  costs,  on  the  stipulation  there- 
for, the  special  term  has  power,  after  the  filing  of  the  remitti- 
tur, to  award  costs  and  an  additional  allowance.155 

Where  the  appellate  division  modifies  so  as  to  provide  for  a 
recovery  against  a  defendant  in  a  certain  contingency,  and  no 
costs  are  adjudged  against  the  defendant  as  a  part  of  such 
recovery,  and  such  judgment,  as  so  modified,  is  "affirmed,  with 
costs  to  appellants, ' '  only  costs  of  the  court  of  appeals  are  tax- 
able.156 

As  including  disbursements.     A  reversal  "with  costs" 

does  not  include  disbursements,  except  on  appeal  from  a  final 
judgment,  when  the  successful  party  is  entitled  to  charge  for 
certain  necessary  disbursements.157  If  the  affirmance  or  re- 
versal of  an  order  or  of  an  interlocutory  judgment  is  intended 
to  carry  disbursements,  the  order  of  the  appellate  court  must 
expressl}'  provide  therefor. 

Separate  bills  of  costs.  Where  the  court  of  appeals  re- 
verses "with  costs,"  the  lower  court  has  no  authority  to  give 
a  separate  bill  of  costs  to  each  appellant.158  So  an  affirm- 
ance "with  costs  to  the  respondents"  authorizes  only  one  bill 
of  costs  for  all  the  respondents,150  though  where  the  respond- 
ents are  not  united  in  interest,  it  is  proper  to  tax  separate  bills 

155  Barnard  v.  Hall,  143  N.  Y.  339;  Hascall  v.  King,  165  N.  Y.  288. 

156  Newcomb  v.  Hale,  64  How.  Pr.  400. 

isiCassidy  v.  McFarland,  139  N.  Y.  201,  209,  followed  in  Bolte  v. 
Dieckmann,  58  App.  Div.  85,  68  N.  Y.  Supp.  444. 

158  Sweet  v.  Mowry,  49  State  Rep.  262,  20  N.  Y.  Supp.  924,  jt.  aff.  138 
N.  Y.  650;  Isola  v.  Weber,  12  App.  Div.  267,  42  N.  Y.  Supp.  615.  But  if 
the  respondent  does  not  object  and  takes  no  appeal  therefrom,  a  surety 
on  an  undertaking  cannot  raise  the  objection  collaterally  when  sued 
thereon.  Lesster  v.  Lawyers'  Surety  Co.,  50  App.  Div.  1S1,  189,  63  N. 
Y.  Supp.  804. 

153  Van  Gelder  v.  Van  Gelder,  84  N.  Y.  658.  Where  the  defendants  in 
an  action,  having  answered  and  defended  separately,  were  allowed  sep- 
arate bills  of  costs,  but  upon  appeal  by  the  plaintiff  were  each  repre- 
sented by  the  same  counsel,  the  decision  affirming  the  judgment  with 
"costs  of  said  appeal  to  the  defendants"  entitles  them  to  but  one  bill  of 
costs  on  the  appeal.     Fischer  v.  Langbein,  31  Hun,  272. 


3966  COSTS  ON  APPEAL.  §  2879 


Art.   VI.     Procedure  in  Lower  Court. 


of  costs.100  Where  separate  appeals  are  taken  by  different 
parties  from  the  same  order,  and  the  appeals  are  not  consoli- 
dated though  argued  together  for  convenience  sake,  a  dis- 
missal with  costs  entitles  the  respondent  to  costs  from  both  of 
the  appellants.101  Where  appellants  appeared  and  answered 
separately  on  the  trial  but  united  in  a  case  on  appeal,  and  the 
appellate  division  reversed  and  ordered  a  new  trial  with  costs 
to  each  of  the  appealing  parties,  and  the  court  of  appeals  af- 
firmed the  order  with  costs  and  awarded  judgment  absolute 
on  the  stipulation  therefor,  the  appellants  are  entitled  to  a 
separate  bill  of  costs  on  the  first  appeal  and  a  joint  bill  on  the 
further  appeal  to  the  court  of  appeals.162 

§  2879.     Reversal  or  affirmance  "without  costs." 

In  an  equity  case,  the  appellate  court,  on  reversing  or  affirm- 
ing, may  desire  to  do  so  without  imposing  the  costs  of  the  ap- 
peal on  either  party  or  it  may  intend  to  go  farther  and  strike 
out  all  costs  previously  awarded  to  either  party.  The  appel- 
late court  has  the  power  to  strike  out  all  allowances  for  costs 
included  in  the  judgments  rendered.103  Ordinarily  an  order 
"without  costs"  merely  means  without  costs  of  the  appellate 
court.101     Thus   where   both   parties   appeal   to   the   appellate 

i6o  See  Reynolds  v.  ^Etna  Life  Ins.  Co.,  30  Misc.  152,  61  N.  Y.  Supp. 
901.  Where  several  defendants,  not  united  in  interest,  made  separate 
defenses  by  separate  answers,  and  recovered  against  plaintiffs  separate 
judgments  for  damages  in  the  nature  of  counterclaims,  and  the  judg- 
ments were  affirmed  on  plaintiff's  appeal,  with  costs  to  respondents,  they 
were  each  entitled  to  a  separate  bill  of  costs.  New  York  &  N.  H.  R.  Co. 
v.  Schuyler,  29  How.  Pr.  89. 

lei  Lesster  v.  Lawyers'  Surety  Co.,  30  Misc.  771,  62  N.  Y.  Supp.  479. 
But  it  has  been  held  where  a  proceeding  to  acquire  title  to  lands  for  a 
railroad,  in  which  the  owners  and  lessees  appeared  by  different  attor- 
neys and  took  separate  appeals,  was  dismissed  in  the  court  of  appeals, 
with  costs,  but  one  bill  of  costs  in  the  supreme  court  and  court  of  ap- 
peals could  be  taxed,  and  that  it  was  error  to  award  costs  to  each  of  the 
respondents.     Matter  of  New  York,  W.  S.  &  B.  R.  Co.,  28  Hun,  505. 

162  Von  Keller  v.  Schulting,  45  How.  Pr.  139. 

163  Hogan  v.  Kavanaugh,  139  N.  Y.  620. 

164  See  McGregor  v.  Buell,  1  Keyes,  153. 


§  2880  COSTS  ON  appeal.  3967 

Art.  VI.     Procedure   in  Lower  Court. 

division  from  a  judgment  for  plaintiff,  a  reversal  "without 
costs"  relates  only  to  costs  of  the  appeal.165  But  where  the 
court  of  appeals  affirms  an  order  granting  a  new  trial  in  an 
equity  case,  and  judgment  absolute  is  ordered  against  the  ap- 
pellant "without  costs"  to  either  party,  it  disposes  of  all  the 
costs  in  the  action,  and  it  is  irregular  to  insert  costs  in  the 
judgment  entered  on  the  remittitur ;  and  the  remedy  therefor  is 
by  motion  to  correct  the  judgment.166  Where  an  order  of  the 
court  of  appeals  states  "that  the  said  judgment  be  modified, 
as  stated  in  the  opinion,  without  costs"  and  the  appellate  di- 
vision had  affirmed  with  costs,  the  order  was  held  properly  con- 
strued as  referring  merely  to  the  costs  of  the  court  of  appeals, 
in  the  absence  of  the  opinion  of  the  court  of  appeals  in  the 
printed  papers.167  On  reversal  "without  costs"  in  an  equity 
case,  the  clerk  has  no  power  to  tax  costs. 16S 

§  2880.     Costs  "to  abide  the  event." 

When  a  new  trial  is  granted  by  the  appellate  court,  costs 
are  usually  awarded  "to  abide  the  event"  or  "to  the  appellant 
to  abide  the  event."  "To  abide  the  event"  means  to  abide 
the  final  result  of  the  action  in  which  the  costs  were  awarded. 
The  final  result,  i.  e.,  the  event,  may  be  reached  where  there  is 
a  voluntary  discontinuance,169  or  where  the  plaintiff  serves  a 
new  complaint  setting  up  a  new  cause  of  action.170  If  costs 
are  awarded  "to  abide  the  event,"  and  the  final  event  is  a 
judgment  in  which  neither  party  is  wholly  successful,  the  costs 
of  the  entire  action  may  be  refused  either  party.171  Where 
costs  are  awarded  to  abide  the  event,  and  on  the  new  trial 

iss  Sander  v.  New  York  &  H.  R.  Co.,  56  App.  Div.  273,  67  N.  Y.  Supp. 
809. 

ice  patten  v.  Stitt,  50  N.  Y.  591. 

i^Callanan  v.  Gilman,  55  Super.  Ct.  (23  J.  &  S.)  511,  2  N.  Y.  Supp. 
702. 

los  Chase  v.  Miser,  67  Barb.  441. 

169  Van  Wyck  v.  Baker,  11  Hun,  309. 

i7o  Coyle  v.  Third  Ave.  R.  Co.,  19  Misc.  345,  43  N.  Y.  Supp.  499. 

"I  Mandeville  v.  Avery,  44  State  Rep.  1,  17  N.  Y.  Supp.  429;  in  which 
case,  however,  costs  up  to  the  last  trial  were  awarded  to  appellant. 


3968  costs  on  appeal.  §  2880 

Art.   VI.     Procedure  in  Lower  Court. 

plaintiff  recovers  on  several  causes  of  action  but  is  defeated  as 
to  others  involving  much  more  than  those  as  to  which  a  re- 
covery is  had,  plaintiff  cannot  be  said  to  have  been  successful 
on  the  appeal,  but  defendant  is  the  successful  party.172 

It  is  well  settled  that  where  the  court  of  appeals  reverses  a 
judgment  "with  costs  to  abide  the  event,"  the  party  finally 
successful  in  the  action,  even  though  he  be  the  respondent,  is 
entitled  to  the  costs  of  such  appeal.173  This  rule  also  applies  to 
a  reversal  by  the  appellate  division,174  except  in  the  first  depart- 
ment.170 In  other  words,  an  appellant  may  be  successful  on 
appeal  and  obtain  a  new  trial  "with  costs  to  abide  the  event," 
but  if  he  is  not  ultimately  successful  he  is  chargeable,  if  costs 
are  finally  awarded  to  the  successful  party,  not  only  with  the 
costs  of  the  trials  in  which  he  was  unsuccessful  but  also  with 
the  costs  of  an  appeal  where  he  was  successful.  If,  however, 
costs  are  awarded  "to  appellant"  to  abide  the  event,  instead  of 
generally  to  abide  the  event,  the  costs  of  the  appeal  cannot  be 
taxed  against  him  if  he  is  ultimately  defeated. 

Does  the  award  of  "costs  to  abide  the  event"  mean  only  the 
costs  of  the  appellate  court  or  does  it  refer  to  all  the  costs  to 
date?  The  court  of  appeals  has  answered  this  question  by 
holding  that  the  term  always  means  all  the  costs  of  the  action 
up  to  and  including  the  decision  of  the  court  of  appeals.176 

Where  the  affirmance  of  a  judgment  against  "executors"  is 
reversed  by  the  court  of  appeals  "with  costs  to  abide  the 
event,"  and  the  second  trial  results  in  a  judgment  against  the 
executors,  the   costs  cannot  be  taxed  against  the  executors, 

172  Abendroth  v.  Durant,  9  Civ.  Proc.  R.   (Browne)  446. 

173  First  Nat.  Bank  of  Meadville  v.  Fourth  Nat.  Bank  of  N.  Y.,  84 
N.  Y.  469. 

174  Smith  v.  Smith,  22  App.  Div.  319,  47  N.  Y.  Supp.  987;  Van  Wyck 
v.  Baker,  11  Hun,  309;  Loring  v.  Morrison,  25  App.  Div.  139,  48  N.  Y. 
Supp.  975;  Abendroth  v.  Durant,  9  Civ.  Proc.  R.  (Browne)  446. 

i7.-.  Union  Trust  Co.  v.  Whilton,  17  Hun,  594;  Durant  v.  Abendroth, 
48  Hun,  16,  1  N.  Y.  Supp.  538,  followed  in  House  v.  Lockwood,  48  Hun, 
550,  1  N.  Y.  Supp.  540. 

i76Franey  v.  Smith,  126  N.  Y.  658;  Jaffray  v.  Goldstone,  62  Hun,  52, 
16  N.  Y.  Supp.  430.  So  held  in  appellate  division.  Smith  v.  Smith,  22. 
App.  Div.  319,  47  N.  Y.  Supp.  987. 


§  2882  COSTS  ON  APPEAL.  3969 

Art.  VI.     Procedure  in  Lower  Court. — B.   Taxation. 

since  they  are  exempted  therefrom  by  section  1836  of  the  Code, 
where  the  case  is  not  within  the  exceptions  contained  therein; 
and  in  such  a  case  the  word  "event"  has  a  more  extended 
meaning  than  usual  inasmuch  as  it  means  not  only  final  success 
in  the  action  but  also  a  valid  award  of  costs,  generally,  under 
said  section  1836.177 

§  2881.     Costs  "to  appellant  to  abide  the  event." 

Where  the  court  of  appeals  awards  costs  to  appellant  to 
abide  the  event,  it  refers  only  to  the  costs  of  the  court  of  ap- 
peals. If  the  respondent  is  finally  successful  he  can  tax  the 
costs  of  both  trials  and  of  the  appeal  to  the  appellate  di- 
vision.178 

Where  the  appellate  division  awards  costs  "to  the  appellant 
to  abide  the  event"  and  the  respondent  is  again  successful 
in  the  trial  court,  there  is  no  question  but  that  he  cannot  tax 
the  costs  of  the  appeal,  and  there  are  cases  holding  that  he  can- 
not tax  the  costs  of  the  first  trial,179  though  the  weight  of  au- 
thority is  that  he  can  tax  the  costs  of  the  first  trial.1S0  Where 
the  appellate  division  awards  costs  "to  the  defendant  to  abide 
the  event,"  and  he  is  compelled,  as  a  condition  of  being  allowed 
to  amend  his  answer,  to  pay  "the  costs  of  the  action  to  the 
present  time,"  such  order  does  not  deprive  him  of  his  con- 
tingent right  to  costs  under  the  decision  on  the  appeal.181 

(B)    TAXATION. 

§  2882.     Procedure. 

If  a  party  to  the  appeal  deems  himself  aggrieved  by  the 
order  of  the  appellate  court  as  to  costs,  his  remedy  is  to  apply 

i"  Benjamin  v.  Ver  Nooy,  168  N.  Y.  578,  modifying  36  App.  Div.  581, 
55  N.  Y.  Supp.  796. 

"3  Belt  v.  American  Cent.  Ins.  Co.,  33  App.  Div.  239,  53  N.  Y.  Supp. 
363. 

179  Elliott  v.  Luengene,  19  Misc.  428,  43  N.  Y.  Supp.  114D.  See,  also, 
Cochran  v.  Gottwald,  42  Super.  Ct.  (10  J.  &  S.)  214. 

lso  Howell  v.  Van  Siclen,  4  Abb.  N.  C.  1;  Bueb  v.  Geraty,  31  Misc.  22, 
62  N.  Y.  Supp.  1125;  Bannerman  v.  Quackenbush,  2  City  Ct.  R.  172,  2 
How.  Pr.  (N.  S.)  82,  7  Civ.  Proc.  R.  (Browne)  428. 

«i  Havemeyer  v.  Havemeyer,  48  Super.  Ct.   (16  J.  &  S.)   104. 
N.  Y.  Prac— 249. 


£970  COSTS  ON  APPEAL.  §2882 

Art.  VI.     Procedure  in  Lower  Court. — B.   Taxation. 

to  that  court  for  an  amendment  of  the  order.182  Otherwise 
the  costs  must  be  taxed  according  to  the  command  of  the  ap- 
pellate court,  except  where  the  costs  are  a  matter  of  right,  in 
which  case  the  order  of  the  appellate  court  has  no  effect  on  the 
right  to  tax.  The  costs  are  taxed  in  the  lower  court  in  the 
same  way  as  are  the  costs  of  a  trial  or  hearing  in  the  lower 
court.1"3  Where  the  appellate  division  awards  costs  to  be 
taxed  by  the  clerk  "of  this  court"  the  clerk  of  the  supreme 
court  is  meant.184  Costs  of  a  motion  in  the  appellate  court, 
where  a  specific  sum  is  awarded,  are  enforcible  independently 
and  require  no  taxation.185 

Form  of  bill  of  costs  on  appeal  to  the  appellate  division. 

Supreme  court,  county. 

[Title  of  cause.] 

Making  and   serving  a  case . $20.00  ise 

Costs   before   argument 20.00 

Costs   for   argument 40.00 

DISBURSEMENTS. 

Clerk's  fee,  entry   of  judgment 50 

Transcript  and  docketing  in  another  county 18 

Sheriff's  fees  on  execution .62 

182  Matter  of  Water  Com'rs  of  Amsterdam,  104  N.  Y.  677. 

183  See  vol.  3,  pp.  3026-3039.  In  entering  judgment  in  the  court  below, 
upon  remittitur  from  the  court  of  appeals,  the  costs  of  the  appeal  should 
be  adjusted  by  the  clerk  of  the  court  below,  and  inserted  in  the  entry 
of  judgment  in  that  court.  Union  India  Rubber  Co.  v.  Babcock,  1  Abb. 
Pr.  262,  11  Super.  Ct.  (4  Duer)  620.  An  entry  of  judgment  upon  a 
remittitur  from  the  court  of  appeals,  with  the  costs  inserted  therein  as 
adjusted,  in  the  absence  of  the  attorney  of  the  unsuccessful  party,  is 
irregular,  but  the  whole  judgment  is  not  void,  for  the  irregularity  can 
he  corrected  by  amending  the  judgment  roll,  docket,  and  execution. 
Liawrence  v.  Bank  of  Republic,  29  Super.  Ct.  (6  Rob.)  497.  Disburse- 
ments uncertain  in  amount  awarded  by  an  appellate  tribunal  may  be 
directed  to  be  taxed  by  the  clerk.  Higgins  v.  Callahan,  2  Civ.  Proc, 
R.  (Browne)  302,  10  Daly,  420. 

184, 185  Margulies  v.  Damrosch,  23  Misc.  77,  51  N.  Y.  Supp.  833. 

i8o  if  it  exceeds  fifty  folios,  thirty  dollars  may  be  taxed.  If  respond- 
ent is  awarded  costs,  the  item  will  be  for  serving  amendments  to  the 
case. 


§  2883  COSTS  ON  APPEAL.  3971 

Art.   VII.     Collection. 

Sheriff's  fees  on  execution  in  another  county .62 

Postage 

Printing  case 

Printing  points 

Stenographer's  fees  for  copy 

[Add  affidavit  as  in  form  in  vol.  3,  p.  3030,  leaving  out  next  to  last 
sentence.] 

Taxed  at  $ this day  of ,  190—. 

A.  X., 
Clerk. 

Retaxed  at  $ this day  of ,  190 — . 

A.    X., 

Clerk. 
Form  of  bill  of  costs  on  appeal  to  court  of  appeals. 

Supreme  court,  county. 

[Title  of  cause.] 

Costs  before  argument $30.00 

Costs   for   argument 60.00 

Term    fees 

Damages  for  delay 

DISBURSEMENTS. 

Filing  notice  of  appeal 50 

Paid  for  remittitur 

Printing    case 

Printing  points 

Postage    

[Affidavit  of  disbursements  as  in  preceding  form,  and  add  statement 
"that  all  the  requirements  of  rule  5  of  the  court  of  appeals  has  been 
complied  with  in  all  papers  printed  for  use  in  that  court."] 

Taxed  at  $ this  day,  etc. 

A.    X., 
Clerk. 

ART.    VII.     COLLECTION. 

§  2883.     Costs  on  appeal  from  final  judgment. 

The  costs  awarded  on  appeal,  after  taxation  and  insertion 
in  the  judgment  entered  in  the  lower  court,  are  enforced  as  a 
part  of  the  judgment  in  the  same  manner  that  the  judgment 
may  be  enforced.187 

i"  See  vol.  3,  p.  3039. 


3972  COSTS  ON  APPEAL.  §  2S85 


Art.  VII.     Collection. 


§  2884.     Costs  on  appeal  from  interlocutory  judgment. 

If  other  issues  remain  to  be  tried  a  final  judgment  cannot 
be  entered  on  the  order  of  the  appellate  court  affirming  or  re- 
versing an  interlocutory  judgment.  Costs  of  the  appeal  can- 
not be  collected  at  once  but  must  await  the  final  outcome  of 
the  litigation  and  then  may  be  added  to  the  final  judgment  or 
set  off  against  it.188 

§  2885.     Costs  on  appeal  from  order. 

Ordinarily  the  costs  of  appeals  from  orders  are  included  in 
the  final  judgment,  but  no  judgment  can  be  entered  in  the 
lower  court  simply  for  such  costs,  as  where  the  appeal  is  from 
an  order  made  after  the  entry  of  final  judgment.  In  such 
a  case,  the  proper  practice  is  to  enter  the  order  for  costs  and 
serve  a  certified  copy  thereof,  and  then  if  they  are  not  paid 
within  ten  days  thereafter,  an  execution  against  personal  prop- 
erty may  be  issued,  as  provided  for  by  section  779  of  the  Code, 
since  costs  of  an  appeal  from  an  order  are  costs  of  a  motion, 
within  said  section,189  so  that  the  failure  to  pay  them  within 
ten  days  also  stays  further  proceedings  on  the  part  of  the 
person  liable  therefor.190 

isscassavoy  v.  Pattison,  101  App.  Div.  128,  91  N.  Y.  Supp.  876,  and 
cases  cited. 

isQMdntyre  v.  German  Sav.  Bank,  59  Hun,  536,  13  N.  Y.  Supp.  674; 
Carrigan  v.  Washburn,  18  Civ.  Proc.  R.  (Browne)  79,  9  N.  Y.  Supp.  541. 
See  vol.  2,  p.  1915. 

isoMargulies  v.  Damrosch,  23  Misc.  77,  51  N.  Y.  Supp.  833;  Hunt  v. 
Sullivan,  79  App.  Div.  119,  79  N.  Y.  Supp.  708,  followed  in  Wasserman 
v.  Benjamin,  91  App.  Div.  547,  549,  86  N.  Y.  Supp.  1022.  If  order  grant- 
ing a  new  trial  has  been  affirmed  with  costs  to  defendant  (respondent), 
plaintiff  must  pay  such  costs  before  he  can  have  the  action  restored  to 
the  calendar.    Cohen  v.  Krulewitch,  81  App.  Div.  147,  80  N.  Y.  Supp.  689. 


PART  II. 

APPEALS  FROM  SURROGATE'S  COURT. 


Code  provisions,  §  2886. 

Decrees  and  orders  which  are  appealable,  §  2887. 

Court  to  which  appeal  is  to  be  taken,  §  2888. 

Designation  of  parties  to  appeal  and  title  of  appeal,  §  2889. 

Who  may  appeal,  §  2890. 

Person  not  a  party. 

Time  to  appeal,  §  2891. 

Notice  of  appeal,  §  2892. 

Mode  of  service. 

Parties,  §  2893. 

■  Heirs,  legatees,  and  devisees. 

Infants. 

Attorneys. 

Substitution  in  case  of  death. 

Security  on  appeal,  §  2894. 

Security  to  perfect  appeal. 

■  Security  to  stay  proceedings. 

Supplying  defects  in  attempt  to  appeal,  §  2895. 

Effect  of  appeal,  §  2896. 

Appeal  from  decree  admitting  will  to  probate  or  granting 

letters. 

Appeal  from  decree  revoking  probate  or  letters  or  sus- 
pending representative. 

Appeal  papers,  §  2897. 

Review,  §  2898. 

Intermediate  orders. 

Questions  of  law. 

■  Questions  of  fact. 

■  Discretion  of  surrogate. 

Objections  not  urged  in  lower  court. 

Questions  raised  by  respondents. 

Judgment  or  order,  §  2899. 

Reversal  for  erroneous  rulings  on  admission  of  evidence. 

Award  of  jury  trial  on  reversal  of  probate. 

Remittitur,  §  2900. 

Costs,  §  2901. 


3974  APPEALS  FROM  SURROGATE'S  COURT.  §  2887 

Code  Provisions. — Decrees  and  Orders  Appealable. 

§  2886.     Code  provisions. 

The  general  chapter  of  the  Code,  concerning  appeals,  was 
originally  declared  not  to  apply  to  appeals  from  a  surrogate's 
court;  and  though  that  provision  has  been  repealed,  it  is  be- 
lieved that  this  principle  still  remains,  inasmuch  as  a  complete 
scheme  for  appeals,  in  the  first  instance,  is  contained  in  chapter 
eighteen  of  the  Code  in  which,  however,  certain  sections  of  the 
general  chapter  concerning  appeals  are  made  applicable  by  ref- 
erence.1 Article  four  of  title  two  of  chapter  eighteen  of  the 
Code  relates  to  appeals  from  a  surrogate's  court  to  the  ap- 
pellate division  of  the  supreme  court.  These  Code  provisions 
(2568-2589)  do  not  apply  to  an  appeal  from  the  appellate  di- 
vision to  the  court  of  appeals,2  but  such  an  appeal  is  regulated 
by  the  same  provisions  applicable  to  all  other  appeals  to  the 
court  of  appeals,  as  already  treated  of. 

§  2887.     Decrees  and  orders  which  are  appealable. 

An  appeal  to  the  appellate  division  may  be  taken  from  a 
decree3  of  a  surrogate's  court,  or  from  an  order4  affecting  a 
substantial  right,  made  by  a  surrogate  or  by  a  surrogate's 
court  in  a  special  proceeding.5 

It  will  be  noted  that  the  order,  to  be  appealable,  need  not  be 
a  final  order.  An  intermediate  order,  or  an  order  made  after 
the  decree  is  appealable  if  it  affects  a  "substantial  right."6 
An  order  determining  that  a  person  has  such  an  interest  in  the 
estate  as  to  entitle  him  to  call  on  the  executor  to  account 

i  Redfield,  Pr.  Sur.  Cts.  921. 

2  Matter  of  Gihon's  Will,  29  Misc.  273,  61  N.  Y.  Supp.  244. 

s  A  decree,  or  final  order,  is  defined  by  Code  Civ.  Proc.  §  2550,  as  "the 
final  determination  of  the  rights  of  the  parties  to  a  special  proceeding 
in  a  surrogate's  court." 

*  An  order  is  defined  as  "a  direction  of  a  surrogate's  court,  made  or 
entered  in  writing,  and  not  included  in  a  decree."  Code  Civ.  Proc. 
§  2556. 

s  Code  Civ.  Proc.  §  2570.  Under  the  Revised  Statutes  an  appeal  was 
allowed  in  "all"  cases  but  the  courts  confined  the  appeals  to  orders  af- 
fecting a  substantial  right. 

0  As  to  what  is  a  substantial  right,  compare,  ante,  §  2552. 


§  2887  APPEALS  FROM  SURROGATE'S  COURT.  3975 


Decrees  and  Orders  Appealable. 


affects  a  substantial  right  of  the  executors.7  So  does  an  order 
denying  a  motion  for  the  issuance  of  commissions  to  take  testi- 
mony ; 8  an  order  directing  an  executor  to  pay  a  legacy ; 9  an  or- 
der adjudging  that  there  are  assets  in  the  hands  of  the  adminis- 
trator, which  he  has  denied,  and  requiring  him  to  account  there- 
for ; 10  an  order  fixing  the  fees  of  appraisers  of  the  estate  of  a 
decedent ;  "  and  an  order  opening,  vacating  or  modifying  a 
decree,  or  granting  a  new  trial.12  But  an  order  merely  denying 
a  motion  to  dismiss  proceedings  to  revoke  the  probate  of  a  will 
does  not  affect  a  substantial  right,13  nor  does  an  order  refusing 
to  note  the  intervention  of  a  party  having  no  interest  in  the 
proceedings,14  or  an  order  denying  an  application  to  stay  pro- 
ceedings to  compel  the  executor  to  pay  over  a  legacy  pending 
lunacy  proceedings  against  the  legatee,15  or  an  order  denying 
a  motion  to  resettle  a  former  order,16  or  an  order  denying  a 
motion  that  certain  issues  be  tried  together  instead  of  separ- 
ately,17 or  an  order  permitting  an  amendment  by  making  an 
answer  more  specific,18  or  an  order  denying  a  motion  to  dismiss 
a  petition.19 

Discretionary  orders  are  appealable,20  but  ex  parte  orders 
are  not  appealable.21 

7  Fiester  v.  Shepard,  26  Hun,  183. 

s  Matter  of  Henry's  Estate,  9  Civ.  Proc.  R.  (Browne)  100. 

9  Matter  of  Halsey's  Estate,  93  N.  Y.  48. 

10  Matter  of  Gilbert's  Estate,  104  N.  Y.  200. 

11  Matter  of  Harriot's  Estate,  145  N.  Y.  540. 

12  People  ex  rel.  Stevens  v.  Lott,  42  Hun,  408. 
is  Matter  of  Soule,  46  Hun,  661. 

14,  is  Matter  of  Halsey's  Estate,  93  N.  Y.  48. 

16  Matter  of  Halsey's  Estate,  93  N.  Y.  48;  Matter  of  Sondheim's  Estate, 
69  App.  Div.  5,  74  N.  Y.  Supp.  510. 

it  Matter  of  Henry's  Estate,  9  Civ.  Proc.  R.  (Browne)  100. 

is  Matter  of  Burnett,  15  State  Rep.  116. 

"Matter  of  Phalen,  51  Hun,  208,  4  N.  Y.  Supp.  408;  Matter  ol  West- 
urn's  Estate,  5  App.  Div.  595,  39  N.  Y.  Supp.  429;  Matter  of  Soule,  46 
Hun,  661.  An  order  of  dismissal  may,  however,  affect  a  substantial 
right.     Matter  of  Buckley,  2  State  Rep.  673. 

20  Matter  of  Tilden's  Will,  56  App.  Div.  277,  67  N.  Y.  Supp.  879. 

21  Matter  of  Johnson's  Estate,  27  Hun,  538.     Order  to  show  cause  is 


3976  APPEALS  FROM  SURROGATE'S  COURT.  §  2S90 


Decrees  and  Orders  Appealable. 


Nothing  can  be  gained  by  taking  an  appeal  to  the  appellate 
division  from  a  decree  admitting  a  will  to  probate,  since  any 
poison  interested  in  the  will  may  obtain,  as  a  matter  of  right, 
a  jury  trial  in  the  supreme  court  to  determine  the  validity  of 
the  probate.22 

§  2888.    Court  to  which  appeal  to  be  taken. 

The  appeal  must  be  taken,  in  the  first  instance,  to  the  ap- 
pellate division  of  the  supreme  court. 

§  2889.     Designation  of  parties  to  appeal  and  title  of  appeal. 

Section  1295  of  the  Code  is  expressly  made  applicable  to  ap- 
peals from  surrogate's  courts.23 

§  2890.    Who  may  appeal. 

Any  "party"  aggrieved  may  appeal  from  a  decree  or  an 
order  of  a  surrogate 's  court,  except  where  the  decree  or  order 
of  which  he  complains  was  rendered  or  made  on  his  default.24 
Of  course,  the  right  to  appeal  may  be  waived  by  inconsistent 
acts  the  same  as  other  appeals.25  An  executor  named  in  a 
will  is  a  "party  aggrieved"  by  a  decree  refusing  to  admit  to 
probate  a  codicil  attached  to  the  will,26  but  an  executor  is  not 
a  "party  aggrieved"  by  a  decree  made  on  his  final  accounting 
directing  him  to  pay  a  legacy,  where  the  only  question  is 
whether  the  legacy  should  be  paid  to  the  person  named  in  the 
will  and  in  the  decree,  or  is  invalid  and,  therefore,  should  be 

not  appealable.     Matter  of  Kreischer's  Estate,  30  App.  Div.  313,  51  N. 
Y.  Supp.  802. 

22  Matter  of  Beck's  Will,  6  App.  Div.  211,  216,  39  N.  Y.  Supp.  810,  fol- 
lowed and  approved  in  Matter  of  Austin's  Will,  35  App.  Div.  278,  55  N. 
Y.  Supp.  52. 

23  Code  Civ.  Proc.  §  2575. 

24  Code  Civ.  Proc.  §  2568. 

25  See  ante,  §§  2574-2590. 

20  Matter  of  Stapleton's  Will,  71  App.  Div.  1,  75  N.  Y.  Supp.  657 
(Laughlin,  J.,  dissenting),  followed  in  Matter  of  Rayner's  Will,  93  App. 
Div.  114,  87  N.  Y.  Supp.  23. 


§  2890  APPEALS  FROM  SURROGATE'S  COURT.  3977 


Who  May  Appeal. 


paid  to  the  residuary  legatees.27  If  the  executor  or  administra- 
tor, on  his  accounting,  has  brought  in  all  persons  interested, 
he  has  no  further  duty  in  their  behalf,  and  cannot  appeal  from 
the  decree,  save  so  much  thereof  as  affects  his  own  rights.28 
An  heir  at  law  may  appeal  from  an  order  permitting  a  sale  of 
the  decedent's  real  property  to  pay  debts.29  A  special  guard- 
ian appointed  by  a  surrogate  may  appeal.30  An  attorney 
cannot  appeal  from  an  order  withdrawing,  against  his  consent, 
his  client's  objections  to  the  proof  of  a  will.31  Persons  having 
no  interest  in  the  estate  of  the  deceased  are  not  aggrieved  by 
an  order  settling  the  accounts  of  the  executor.32  It  has  been 
held  that  a  petitioner  for  probate,  where  otherwise  a  person  en- 
titled to  appeal,  may  appeal  from  an  order  admitting  the  will 
to  probate,33  but  it  would  seem  that  this  decision  would  not  be 
followed  under  the  present  Code  provision  which  limits  the 
right  to  appeals  to  those  "aggrieved." 

Persons  not  a  party.  A  creditor  of,  or  a  person  inter- 
ested 3*  in,  the  estate  or  fund  affected  by  the  decree  or  order, 
who  was  not  a  party  to  the  special  proceeding,  but  was  entitled 
by  law  to  be  heard  therein,  upon  his  application,  or  who  has 
acquired,  since  the  decree  or  order  was  made,  a  right  or  in- 
terest which  would  have  entitled  him  to  be  heard  if  it  had  been 

27  Matter  of  Coe,  55  App.  Div.  270,  66  N.  Y.  Supp.  784.  Compare 
Bryant  v.  Thompson,  128  N.  Y.  426,  and  Bliss  v.  Fosdick,  76  Hun,  508, 
27  N.  Y.  Supp.  1053,  which,  however,  were  appeals  from  the  supreme 
court.     See,  also,  ante,  §  2570. 

28  Matter  of  Hodgman,  140  N.  Y.  421,  430;  Matter  of  Richmond,  63 
App.  Div.  488;  71  N.  Y.  Supp.  795;  Redfield,  Pr.  Sun.  Cts.  926. 

29  Owens  v.  Bloomer,  14  Hun,  296. 

30  Matter  of  Stewart,  23  App.  Div.  17,  48  N.  Y.  Supp.  999.  He  does 
not  become  functus  officio  by  the  rendition  of  the  decree.     Id. 

si  Matter  of  Evans'  Will,  33  Misc.  671,  68  N.  Y.  Supp.  937. 

32  Matter  of  Hodgman's  Estate,  11  App.  Div.  344,  353,  42  N.  Y.  Supp. 
1004. 

33  Vandemark  v.  Vandemark,  26  Barb.  416. 

s*  The  expression  "person  interested"  includes  every  person  entitled, 
either  absolutely  or  contingently,  to  share  in  the  estate  or  the  proceeds 
thereof,  or  in  the  fund,  as  husband,  wife,  legatee,  next  of  kin,  heir, 
devisee,  assignee,  grantee,  or  otherwise  except  as  a  creditor.  Code  Civ. 
Proc.  §  2514,  subd.  11. 


3978        APPEALS  FROM  SURROGATE'S  COURT.      §  2891 


Who  May  Appeal. 


previously  acquired,  may  intervene  and  appeal.  The  facts 
which  entitle  such  person  to  appeal  must  be  shown  by  an  affi- 
davit, -which  must  be  filed,  and  a  copy  thereof  served  with  the 
notice  of  appeal.88 

Even  before  the  Codes,  it  was  held  that  a  legatee  or  devisee 
named  in  the  will,  but  not  a  party  to  the  proceedings  before 
the  surrogate  for  the  probate  of  the  will,  could  appeal  from 
the  order  refusing  probate,  without  obtaining  leave  to  do  so 
from  the  court.36 

This  Code  section  does  not  require  a  person  included  therein 
to  intervene  before  seeking  to  appeal  nor  does  it  require  him 
to  file  exceptions  to  the  findings  of  the  surrogate  before  tak- 
ing an  appeal.37  A  municipality  which  has  assessed  a  tax 
against  an  administrator  on  account  of  the  estate  is  "a  creditor 
of,  or  person  interested  in,"  the  estate  so  as  to  be  authorized 
to  appeal  from  an  order  settling  the  accounts  of  the  admin- 
istrator.38 A  purchaser  at  a  sale  of  real  estate  made  pursuant 
to  a  surrogate's  decree  may  appeal  from  an  order  vacating 
the  sale.39  Legatees  may  appeal  from  an  order  denying  their 
motion  to  vacate  an  order  taxing  the  fees  of  appraisers,  though 
they  are  not  entitled  to  notice  of  the  taxation  of  such  fees ; 40 
but  legatees  and  next  of  kin  who  have  not  intervened  as 
parties  either  in  the  surrogate's  court  or  on  the  appeal  to  the 
appellate  division,  cannot  appeal  to  the  court  of  appeals.41 

§  2891.     Time  to  appeal. 

An  appeal  by  a  party  must  be  taken  within  thirty  days  after 
the  service  upon  the  appellant,  or  upon  the  attorney,  if  any, 
who  appeared  for  him  in  the  surrogate's  court,  of  a  copy  of 
the  decree  or  order  from  which  the  appeal  is  taken,  and  a  writ- 
ten notice  of  the  entry  thereof.     An  appeal  by  a  person  who 

35  Code  Civ.  Proc.  §  25C9. 

so  Lewis  v.  Jones,  50  Barb.  645,  673. 

3s  38  Matter  of  Sullivan,  84  App.  Div.  51,  82  N.  Y.  Supp.  32. 

so  Delaplaine  v.  Lawrence,  10  Paige,  602. 

40  Matter  of  Harriot's  Estate,  145  N.-Y.  540,  542. 

«  Marvin  v.  Marvin,  11  Abb.  Pr.  (N.  S.)  97. 


§  2892  APPEALS  FROM  SURROGATE'S  COURT.  3979 


Time  to  Appeal. — Notice  of  Appeal. 


was  not  a  party  must  be  taken  within  three  months  after  the 
entry  of  the  decree  or  order,  unless  the  appellant's  title  was 
acquired  by  means  of  an  assignment  or  conveyance  from  a 
party,  in  which  case,  the  appeal  must  be  taken  within  the  time 
limited  for  the  taking  thereof  by  the  assignor  or  grantor.42 

This  provision  applies  only  to  appeals  to  the  appellate  divis- 
ion. A  co-party  cannot  appeal  to  the  court  of  appeals  before 
other  appeals  to  the  appellate  division  by  other  parties,  from 
the  same  judgment,  have  been  disposed  of.43 

The  rule  relating  to  appeals  in  general,  that  the  time  to  ap- 
peal cannot  be  enlarged,  applies,44  though  certain  omissions 
may  be  supplied. 

§  2892.    Notice  of  appeal. 

The  notice  of  appeal  must  refer  to  the  decree  or  order  ap- 
pealed from  and  state  that  the  appellant  appeals  from  the  same 
or  from  a  specified  part  thereof.45  If  the  appeal  is  from  a 
final  order,  i.  e.,  a  decree,  and  an  intermediate  order  is  sought 
to  be  reviewed,  it  must  be  specified  in  the  notice.40  The  notice 
of  appeal  should  be  liberally  construed  in  favor  of  sureties  of 
the  executor  or  administrator,  so  as  to  include  within  it  all 
intermediate  orders  incidentally  referred  to.47 

If  the  appeal  is  by  one  not  a  party  to  the  proceeding  in  the 
surrogate's  court,  a  copy  of  the  affidavit  showing  the  facts 
entitling  such  person  to  appeal,  must  be  served  with  the  notice 
of  appeal.48 

The  notice  of  appeal  need  not  state  the  grounds  of  the  appeal 
nor  specify  that  the  appeal  is  on  the  facts  as  well  as  on  th© 
law,  since  a  review  on  the  facts  may  be  had  on  a  notice  which 

«  Code  Civ.  Proc.  §  2572.     Service  to  limit  time  to  appeal,  see  general 
rules  laid  down  as  to  appeals  from  other  courts  (§§  2602-2608). 
«  Muldoon  v.  Pitt,  54  N.  Y.  269. 
44  See  ante,  §  2599. 
«  Code  Civ.  Proc.  §  2574. 

46  Code  Civ.  Proc.  §  2571. 

47  Matter  of  Lawson,  42  App.  Div.  377,  381,  59  N.  Y.  Supp.  152. 

48  Code  Civ.  Proc.  §  2569. 


3«)S0  APPEALS  FROM  SURROGATE'S  COURT.  §  2893 


Notice  of  Appeal. — Parties. 


is  in  general  terms  "from  the  decree  and  each  and  every  part 
thereof."48 

Mode  of  service.     The  notice  of  appeal  must  be  served 

within  the  state,  upon  each  party  to  the  special  proceeding, 
other  than  the  appellant,  and  upon  the  surrogate,  or  the  clerk 
of  the  surrogate's  court.  Where  a  party  to  the  special  pro- 
ceeding in  the  court  below  appeared  in  person,  the  notice  of 
appeal  must  be  personally  served  upon  him.  Where  he  ap- 
peared by  an  attorney,  it  must  be  served  personally,  either  upon 
him  or  upon  his  attorney.  Where  a  party,  who  was  duly  cited, 
did  not  appear  in  the  surrogate's  court,  notice  of  appeal  must 
be  served  upon  him  personally,  if  he  can,  with  due  diligence, 
be  found  within  the  county ;  otherwise  it  may  be  served  by  de- 
positing it,  indorsed  with  a  direction  to  the  party,  with  the 
surrogate  or  the  clerk  of  the  surrogate's  court.  Where  a 
person  to  be  served  cannot,  with  due  diligence,  be  found,  to 
make  personal  service  on  him,  the  surrogate,  or  a  justice  of  the 
supreme  court,  may,  by  order,  prescribe  such  a  mode  of  service 
as  he  thinks  proper;  and  service  in  that  mode  has  the  same 
effect  as  personal  service.50 

§  2893.    Parties. 

Each  party  to  the  special  proceeding  in  the  surrogate's 
court,  and  each  person  not  a  party,  who  has,  or  claims  to  have, 
in  the  subject-matter  of  the  decree  or  order,  a  right  or  inter- 
est, which  is  directly  affected  thereby,  and  which  appears  upon 
the  face  of  the  papers  presented  in  the  surrogate's  court,  or  has 
become  manifest  in  the  course  of  the  proceedings  taken  therein, 
must  be  made  a  party  to  the  appeal.  A  person  not  a  party, 
but  who  must  be  made  a  party,  may  be  brought  in  by  an  order 
of  the  appellate  court,  made  after  the  appeal  is  taken,  or  the 
appeal  may  be  dismissed  on  account  of  his  absence.  The  ap- 
pellate court  may  prescribe  the  mode  of  bringing  in  such  a 
person,  by  publication,  by  personal  service,  or  otherwise.     But 

*»  Matter  of  Stewart,  135  N.  Y.  413.  See,  as  contra,  dicta  in  Matter 
of  Gilman's  Estate,  92  App.  Div.  462,  87  N.  Y.  Supp.  128. 

so  Code  Civ.  Proc.  §  2574.  Service  by  mail  is  sufficient.  Matter  of 
Williams,  6  Misc.  512,  27  N.  Y.  Supp.  433. 


§  2893  APPEALS  FROM  SURROGATE'S  COURT.  3981 

Parties. 

this  section  does  not  require  a  person  interested,  but  not  a 
party,  to  be  brought  in  if  he  was  legally  represented,  or  was 
duly  cited  in  the  court  below.51 

All  persons  should  be  made  respondents  who  are  interested 
in  sustaining  the  decree.  A  person  not  a  party  may  apply  to 
be  allowed  to  intervene  on  appeal.52  A  party  may  apply  to 
be  joined  as  a  respondent  to  an  appeal  though  his  time  to  take 
a  separate  appeal  has  expired,53  but  the  appellant  cannot  join 
him  as  a  party  after  the  time  to  appeal  has  expired.54  If 
necessary  parties  are  omitted,  but  no  motion  is  made  to  stay 
or  dismiss  the  appeal  or  to  be  allowed  to  intervene,  and  said 
persons  have  not  taken  an  appeal  themselves,  a  reversal  is  im- 
proper as  to  such  persons.55 

Heirs,  legatees,  and  devisees.     The  heirs,  next  of  kin, 

and  legatees  of  a  decedent,  are  necessary  parties  to  an  appeal 
from  an  order  admitting  the  will  to  probate.56  Heirs  are 
necessary  parties  to  an  appeal  taken  by  a  creditor  of  the  estate 
from  an  order  to  pay  a  claim  out  of  the  proceeds  of  the  sale 
of  the  decedent's  real  estate.57 

Infants.  The  special  guardian  appointed  by  the  sur- 
rogate may  be  made  a  party  instead  of  the  infant,  without  ap- 
pointing a  guardian  ad  litem.5S  It  has  been  held  that  where 
the  appeal  is  from  an  order  appointing  a  guardian,  the  infant 
is  a  proper  but  not  a  necessary  respondent ; 59  but  that  where 
the  appeal  is  from  the  refusal  to  appoint  the  applicant  the 
general  guardian  of  an  infant,  the  applicant  should  make 
as  respondent  the  infant  and  not  the  relative  of  the  infant  who 
objected  to  the  appointment.60 

Bi  Code  Civ.  Proc.  §  2573. 

52  Foster  v.  Foster,  7  Paige,  48. 

53  Cox  v.  Scherrnerhorn,  12  Hun,  411. 

54  Patterson  v.  Hamilton,  26  Hun,  CG5. 

55  Brown  v.  Evans,  34  Barb.  594,  603. 

56  Gilman  v.  Gilman,  35  Barb.  591. 

57  Patterson  v.  Hamilton,  26  Hun,  665.  They  cannot  be  made  parties 
after  the  appeal  has  expired.     Id. 

ss  Redfield,  Pr.  Sur.  Cts.  927. 

so  Underhill  v.  Dennis,  9  Paige,  202. 

60  Kellinger  v.  Roe,  7  Paige,  362. 


3982  APPEALS  FROM  SURROGATE'S  COURT.  §  2894 


Parties. — Security. 


Attorneys.     Counsel  for  contestants  of  a  will  to  whom 


sums  niv  allowed  personally  in  lieu  of  costs  are  proper  parties 
to  an  appeal  from  the  order  allowing  such  costs.61 

Substitution  in  case  of  death.     The  Code  rules  (§§  1297- 

1299)  relating  to  the  substitution  of  parties  where  death  oc- 
curs after  the  decision  appealed  from,  on  appeals  in  general,62 
apply  to  appeals  from  a  surrogate's  court.63 

§  2894.     Security  on  appeal. 

Sections  2577  to  2584  of  the  Code  apply  to  security  to  per- 
fect the  appeal  and  to  stay  proceedings.  Sections  1305  to  1309 
of  the  Code,  inclusive,  relating  respectively  to  the  waiver  of 
security  on  appeal,  the  making  a  deposit  in  lieu  of  an  under- 
taking, the  filing  of  the  undertaking,  the  compelling  the  exe- 
cution of  a  new  undertaking  when  one  or  more  of  the  sureties 
become  insolvent,  and  to  actions  on  an  undertaking  also  apply 
to  appeals  from  a  surrogate's  court.64 

An  undertaking,  whether  given  to  perfect  the  appeal  or  to 
stay  proceedings,  must  be  to  the  people  of  the  state ;  must  con- 
tain the  name  and  residence  of  each  of  the  sureties  thereto; 
must  be  approved  by  the  surrogate  or  a  judge  of  the  appellate 
court;  and  must  be  filed  in  the  surrogate's  office.  The  surro- 
gate may,  at  any  time,  in  his  discretion,  make  an  order,  author- 
izing any  person  aggrieved  to  bring  an  action  upon  the  under- 
taking, in  his  own  name,  or  in  the  name  of  the  people.  Where 
it  is  brought  in  the  name  of  the  people,  the  damages  collected 
must  be  paid  over  to  the  surrogate,  and  distributed  by  him 
as  justice  requires.63 

Security    to    perfect    appeal.     Except    as    otherwise 

specially  prescribed,  the  filing  of  a  proper  undertaking,  and 
service  of  the  notice  of  appeal,  perfect  the  appeal.66  To  render 
a  notice  of  appeal  effectual  for  any  purpose,  except  [in  a  case 

6i  Peck  v.  Peck,  23  Hun,  312.     See,  also,  Gilman  v.  Gilman,  3  Hun,  22. 

62  See  ante,  §  2594. 

63  Code  Civ.  Proc.  §  2575. 
ei  Code  Civ.  Proc.  §  2575. 
65,  6g  Code  Civ.  Proc.  §  2581. 


§  2894  APPEALS  FROM  SURROGATE'S  COURT.  3983 


Security  on  Appeal. 


specified  in  section  2578  of  the  Code],  or  where  it  is  specially 
prescribed  by  law  that  security  is  not  necessary  to  perfect  the 
appeal,  the  appellant  must  give  a  written  undertaking,  with  at 
least  two  sureties,  to  the  effect  that  the  appellant  will  pay  all 
costs  and  damages  awarded  against  him  on  the  appeal,  not  ex- 
ceeding $250.G7 

It  is  held,  however,  that  in  all  cases  the  filing  of  an  under- 
taking is  necessary  to  perfect  the  appeal,  notwithstanding  that 
the  Code  section  above  excepts  the  appeals  specified  in  section 
2578  of  the  Code.68 

Security  to  stay  proceedings.     An  appeal  perfected  by 

the  service  and  filing  of  a  notice  of  appeal  and  the  filing  of 
an  undertaking,  operates  as  a  stay  of  the  proceedings  to  en- 
force the  decree  or  order  appealed  from,  "except  as  otherwise 
specially  prescribed  in  this  article:"09  i.  e.,  except  (1)  where 
the  appeal  is  by  an  executor,  administrator,  testamentary 
trustee,  guardian,  or  other  person  appointed  by  the  surrogate's 
court,  from  a  decree  directing  him  to  pay  or  distribute  money, 
or  to  deposit  money  in  a  bank  or  trust  company,  or  to  deliver 
property,  or  by  an  executor  or  administrator  from  an  order 
granting  leave  to  issue  an  execution  against  him;70  or 
(2)  where  the  appeal  from  a  decree  or  an  order,  directing  the 
commitment  of  an  executor,  administrator,  testamentary  trus- 
tee, guardian,  or  other  person  appointed  by  the  surrogate's 
eourt,  or  an  attorney  or  counsel  employed  therein,  for  disobedi- 
ence to  a  direction  of  the  surrogate,  or  for  neglect  of  duty,  or 
directing  the  commitment  of  a  person  refusing  to  obey  a  sub- 
poena, or  to  testify,  when  required  according  to  law.71     Ex- 

gt  Code  Civ.  Proc.  §  2577.     Filing  nunc  pro  tunc,  see  post,  §  2895. 
68  Matter  of  Cluff's  Estate,  11  Civ.  Proc.  R.    (Browne)    338,  followed 
in  Matter  of  Witmark,  15  State  Rep.  745. 
eo  Code  Civ.  Proc.  §  2584. 
■o  Code  Civ.  Proc.  §  2578.     Effect  as  stay,  see  Stout  v.  Betts,  74  Hun, 

266,  26  N.  Y.  Supp.  809;  Stern  v.  Newberger,  15  Wkly.  Dig.  133.  No 
stay  unless  undertaking  given.     Matter  of  Holmes'  Estate,  79  App.  Div. 

267,  79  N.  Y.  Supp.  687. 

7*  Code  Civ.  Proc.  §  2579.  An  undertaking  given  pursuant  to  this 
section,  to  stay  proceedings,  remains  in  force  after  an  appeal  has  been 
taken  to  the  court  of  appeals,  and  the  perfecting  of  the  appeal  to  the 


3984  APPEALS  FROM  SURROGATE'S  COURT.  §  2895 


Security  to  Stay  Proceedings. 


cept  iii  the  two  cases  mentioned,  a  $250  undertaking  given  to 
perfecl  an  appeal  also  operates  as  a  stay  of  proceedings  to  en- 
force the  decree.72 

In  the  two  cases  mentioned,  the  Code  provisions  (§§  2578, 
2579)  fix  the  contents  of  the  undertaking  to  be  given  to  stay 
proceedings.  The  sum  specified  in  the  undertaking  must,  where 
the  appeal  is  taken  from  a  decree  directing  the  payment,  de- 
position, or  distribution  of  money,  be  not  less  than  twice  the 
sum  directed  to  be  paid,  deposited,  or  distributed.  Where  the 
appeal  is  taken  from  an  order  granting  leave  to  issue  an  exe- 
cution, it  must  be  not  less  than  twice  the  sum,  to  collect  which 
the  execution  may  issue.  In  every  other  case,  it  must  be  fixed 
by  the  surrogate  or  by  a  judge  of  the  appellate  court  who  may 
require  proof,  by  affidavit,  of  the  value  of  any  property  or  of 
such  other  facts  as  he  deems  proper.  The  respondent  may 
apply  to  the  appellate  court,  upon  notice,  for  an  order  requir- 
ing the  appellant  to  increase  the  sum  so  fixed.  If  such  an 
order  is  granted,  and  the  appellant  makes  default  in  giving  the 
new  undertaking,  the  appeal  may  be  dismissed  or  the  stay  dis- 
solved, as  the  case  requires.73 

§  2895.     Supplying  defects  in  attempt  to  appeal. 

Section  1303  of  the  Code  which  relates  to  supplying  any  de- 
fects in  the  service  of  the  notice  of  appeal  or  the  giving  of  an 
undertaking  7i  is  expressly  made  applicable  to  appeals  from  a 
surrogate 's  court.75 

court  of  appeals  is  sufficient  to  stay  all  proceedings  pending  such  appeal. 
Matter  of  Pye,  21  App.  Div.  226,  47  N.  Y.  Supp.  689. 

72  Matter  of  Arkenburgh,  11  App.  Div.  44,  41  N.  Y.  Supp.  287,  43  N.  Y. 
Supp.  1150. 

"s  Code  Civ.  Proc.  §  2580.  This  section  applies  only  to  appeals  by 
executors,  administrators,  etc.  Matter  of  Arkenburgh,  11  App.  Div.  44, 
41  N.  Y.  Supp.  287,  43  N.  Y.  Supp.  1150. 

-i  See  ante,  §  2633. 

75  Code  Civ.  Proc.  §  2575.  The  surrogate's  court,  as  well  as  the  ap- 
pellate division,  may  permit  an  undertaking  to  be  filed  after  the  time 
to  appeal  has  expired,  where  the  notice  of  appeal  was  seasonably  served, 
and  failure  to  file  undertaking  was  because  of  mistake  or  inadvertence. 
Matter  of  Darragh,  1  Con.  Surr.  170,  3  N.  Y.  Supp.  283. 


§  2896  APPEALS  FROM  SURROGATE'S  COURT.  3985 


Effect  of  Appeal. 


§  2896.    Effect  of  appeal. 

Sections  2582  and  2583  of  the  Code  provide  as  to  the  effect 
of  certain  appeals  on  proceedings  in  the  surrogate's  court. 

The  appeal  from  a  decree  admitting  a  will  to  probate,  or  re- 
voking a  probate,  removes  the  entire  proceeding  to  the  appel- 
late division,  so  that  an  application  for  a  rehearing  cannot  be 
made  in  the  surrogate's  court  pending  the  appeal  to  the  ap- 
pellate division.76 

Appeal  from  decree  admitting  will  to  probate  or  grant- 
ing letters.  An  appeal  from  a  surrogate's  decree  admitting 
a  will  to  probate  or  granting  letters,  or  from  an  order  of  the 
appellate  division  affirming  such  a  decree,  does  not  stay  the 
issuing  of  letters,  where,  in  the  opinion  of  the  surrogate,  mani- 
fested by  an  order,  the  preservation  of  the  estate  requires  that 
the  letters  should  issue.  Letters  so  issued  confer  no  power, 
however,  to  sell  real  property  as  provided  for  in  the  will,  or  to 
pay  or  to  satisfy  a  legacy,  or  to  distribute  the  unbequeathed 
property  of  the  decedent,  until  after  the  final  determination 
of  the  appeal." 

This  section  authorizes  the  surrogate  to  direct  the  issuance 
of  letters  to  an  executor  pending  an  appeal  to  the  court  of 
appeals  from  the  affirmance  of  the  order  admitting  a  will  to 
probate,  as  well  as  pending  an  appeal  to  the  appellate  di- 
vision.78 

In  case  letters  are  issued  before  the  appeal  is  taken,  the  exe- 
cutor or  administrator,  "on  a  like  order  of  the  surrogate,  may 
exercise  the  powers  and  authority,  subject  to  the  duties,  lia- 
bilities, and  exceptions  above  provided."79  This  is  the  con- 
cluding sentence  of  the  Code  provision  under  consideration, 
and  it  seems  to  contemplate  an  express  order  of  the  surrogate 

-o  Matter  of  Murphy's  Will,  79  App.  Div.  541,  81  N.  Y.JBupp.  101. 

"Code  Civ.  Proc.  §  2582;  In  re  Voorhis'  Estate,  1  State  Rep.  306; 
Matter  of  Place's  Estate,  5  Dem.  228.  This  statutory  stay  cannot  affect 
proceedings  in  other  states.  Matter  of  Gaines'  Will,  83  Hun,  225,  31 
N.  Y.  Supp.  664. 

ts  Matter  of  Gihon's  Will,  48  App.  Div.  598,  62  N.  Y.  Supp.  426.  Sea. 
also,  Id.,  29  Misc.  273,  61  N.  Y.  Supp.  244. 

-'■>  Code  Civ.  Proc.  §  2582. 

N.  Y.  Prac—  250. 


39S6  APPEALS  FROM  SURROGATE'S  COURT.  §  2897 


Effect  of  Appeal. 


to  enable  executors  or  administrators  to  act  pending  the  ap- 
peal.80  An  early  case  holding  that  a  reversal  of  the  decree  ad- 
mitting a  will  to  probate,  there  being  a  new  trial  of  the  ques- 
tion of  fact  awarded,  does  not  terminate  the  powers  of  the  ex- 
ecutor which  do  not  cease  until  after  the  final  determination  of 
the  issue  of  facts,18  decided  before  this  sentence  was  added, 
must  be  read  in  connection  with  this  Code  provision. 

Appeal   from   decree   revoking   probate   or   letters   or 

suspending  representative.  An  appeal  from  a  decree  revoking 
the  probate  of  a  will  or  revoking  letters  testamentary,  letters 
of  administration,  or  letters  of  guardianship;  or  from  a  decree 
or  order  suspending  an  executor,  administrator,  or  guardian 
or  removing  or  suspending  a  testamentary  trustee,  or  a  free- 
holder, appointed  to  execute  a  decree,  or  appointing  a  tem- 
porary administrator,  or  an  appraiser  of  personal  property, 
does  not  stay  the  execution  of  the  decree  or  order  appealed 
from.82 


§  2897.    Appeal  papers. 

Where  the  appeal  is  taken  from  a  decree  rendered  upon  the 
trial,  by  the  surrogate,  of  an  issue  of  fact,  it  must  be  heard 
upon  a  case,  to  be  made  and  settled  by  the  surrogate,  as  pre- 
scribed by  law  for  the  making  and  settling  of  a  case  upon  an 
appeal  in  an  action.S3  Findings  of  fact  and  rulings  on  any 
question  of  law  may  be  requested,  and  exceptions  taken,  at  the 
time  the  case  is  settled.84  Where  the  appeal  is  from  an  order, 
and  no  case  is  necessary,  the  return  should  consist  of  all  papers 
used  in  the  surrogate's  court,  necessary  to  a  review  by  the 
.appellate  division.     The  papers  must  be  printed  and  served 

so  Matter  of  Hopkins'  Will,  95  App.  Div.  57,  61,  87  N.  Y.  Supp.  793, 
which  also  held  that  it  was  proper  in  such  a  case,  to  appoint  a  tempor- 
ary administrator,  as  authorized  by  Code  Civ.  Proc.  §  2670. 

si  Thompson  v.  Tracy,  60  N.  Y.  174,  181. 

82  Code  Civ.  Proc.  §  2583;  Matter  of  Fernbacher's  Estate,  8  Civ.  Proc. 
R.  (Browne)  349;  Halsey  v.  Halsey,  3  Dem.  196. 

ss  Code  Civ.  Proc.  §  2576.     See  vol.  3,  pp.  2651-2682. 

84  Code  Civ.  Proc.  §  2545. 


§  2898  APPEALS  FROM  SURROGATE'S  COURT.  3987 


Review. 


the  same  as  if  the  appeal  was  to  the  appellate  division  from  any- 
other  inferior  court.85 

§  2898.    Review. 

Until  a  decision  is  made  and  filed,  stating  separately  the 
findings  of  fact  and  conclusions  of  law,  there  can  be  no  hear- 
ing of  the  appeal.86 

Intermediate  orders.     An  appeal  from  a  decree  brings 

up  for  review  each  intermediate  order  specified  in  the  notice 
of  appeal  and  necessarily  affecting  the  decree,  and  which  has 
not  already  been  reviewed  by  the  appellate  court  on  a  separate 
appeal  from  that  order.87 

Questions  of  law.     Each  decision  of  the  surrogate  to 

which  an  exception  has  been  taken,  is  brought  up  for  review. 
Exceptions  may  be  taken  to  a  ruling  by  a  surrogate  on  the  trial 
by  him  of  an  issue  of  fact,  including  a  finding,  or  a  refusal 
to  find,  on  a  question  of  fact,  the  same  as  on  the  trial  of  an 
action  by  the  court  without  a  jury.88  Findings  of  law  or  fact 
may  be  requested  on  the  settlement  of  a  case  and  an  exception 
taken  to  the  finding  or  the  refusal  to  find.89 

Only  such  questions  of  law  can  be  considered  as  have  been 
properly  raised  by  exception;  and  the  question  whether  there 
is  "any"  evidence  to  sustain  a  finding  of  fact  is  a  question  of 
law  as  is  the  question  as  to  the  propriety  of  refusing  a  finding 
of  fact  claimed  to  be  based  on  uncontroverted  evidence.90 
Exceptions  to  the  findings  of  the  surrogate  are  necessary  to  a 
review  thereof  where  he  himself  tries  the  issues  of  fact  or 
where  a  reference  is  ordered  merely  to  take  and  report  the 
evidence,  but  where  a  reference  is  ordered  to  hear  and  de- 
termine the  issues  it  is  sufficient  to  except  to  the  findings  of  the 

85  See  ante,  §§  2715  et  seq. 

se  Matter  of  Widmayer,  52  App.  Div.  301,  65  N.  Y.  Supp.  83.  See,  also, 
Matter  of  Peck's  Will,  60  Hun,  583,  14  N.  Y.  Supp.  899;  Matter  of  Hood's 
Estate,  104  N.  Y.  103. 

87  Code  Civ.  Proc.  §  2571. 

88  Code  Civ.  Proc.  §  2545.     See  vol.  2,  pp.  2385-2592. 
»»  Code  Civ.  Proc.  §  2545. 

»o  Burger  v.  Burger,  111  N.  Y.  523,  529. 


3988  APPEALS  FROM  SURROGATE'S  COURT.  §  2898 

Scope  of  Review. 

referee  without  excepting  to  the  surrogate's  decree  confirm- 
ing or  modifying  the  referee's  report.91 

Questions  of  fact.     To  authorize  a  review  on  the  facts. 

after  the  filing  of  the  decision,  the  only  condition  is  that  a  case 
be  made  and  settled,  as  on  an  appeal  in  an  action,  and  that 
it  contain  all  the  evidence.  It  is  not  necessary  that  a  motion 
for  a  new  trial  be  first  made  nor  that  the  notice  of  appeal 
specify  that  the  appeal  is  taken  on  the  facts.92  An  exception 
to  the  findings  of  facts  is  not  necessary  to  obtain  a  review  of 
the  facts.93  The  case  must  show  that  it  contains  all  of  the  evi- 
dence to  authorize  a  review  of  the  facts.94 

Where  an  appeal  is  taken  upon  the  facts,  the  appellate  court 
has  the  same  power  to  decide  the  questions  of  fact  which  the 
surrogate  had;  and  it  may,  in  its  discretion,  receive  further 
testimony  or  documentary  evidence,  and  appoint  a  referee.95 
Under  this  Code  provision,  the  appellate  court  has  the  power  to 
supply  any  finding  of  fact  omitted  from  the  decision  or  report, 
and  the  decree,  which  is  essential  to  the  case.96  But  while  the 
appellate  division  has  the  same  power  as  the  surrogate  to  de- 
cide the  facts,  yet  where  there  is  no  additional  evidence  ad- 
duced, the  fact  that  the  surrogate  has  seen  and  heard  the 
witnesses  should  be  given  its  proper  weight.97  The  power  to 
hear  new  evidence  should  be  cautiously  used  and  exercised  only 
when  the  new  evidence  to  be  proposed  is  of  importance;  and 
where  one  party  is 'allowed  to  give  new  evidence,  the  privilege 
should  be  extended  to  the  other.98 

Discretion  of  surrogate.     Matters  of  discretion  will  not 

be  reviewed  except  where  the  discretion  has  been  abused.99 

9i  Matter  of  Yetter,  44  App.  Div.  404,  61  N.  Y.  Supp.  175. 

92  See  ante,  §  2892. 

93  So  held  as  to  review  of  sufficiency  of  evidence.  Burger  v.  Burger, 
111  N.  Y.  523,  528. 

o*  Matter  of  Hodgman's  Estate,  11  App.  Div.  344,  42  N.  Y.  Supp.  1004. 

95  Code  Civ.  Proc.  §  2586;  Matter  of  Landy's  Will,  78  Hun,  479,  29  N. 
Y.  Supp.  136. 

so  Matter  of  Snedeker,  95  App.  Div.  149,  88  N.  Y.  Supp.  847. 

97  Matter  of  Arkenburgh,  38  App.  Div.  473,  478,  56  N.  Y.  Supp.  523; 
Kinne  v.  Kinne,  2  T.  &  C.  391. 

93  Matter  of  Hannah,  45  Hun,  561. 

99  Matter  of  Adler,  60  Hun,  481,  15  N.  Y.  Supp.  227 ;  Matter  of  Tilden's 


§  2899 


APPEALS  PROM  SURROGATE'S  COURT.  3989 

Scope   of  Review. 


The  decision  of  the  surrogate  whether  a  gambler  is,  by  reason 
of  "improvidence,"  unfit  to  act  as  an  administrator,  is  review- 
able on  appeal.100 

Where  an  appeal  is  taken  from  a  determination  of  the  surro- 
gate made  on  an  application  to  open,  vacate,  modify,  or  set 
aside,  or  to  enter,  as  of  a  former  time,  a  decree  or  order  of  his 
court,  or  to  grant  a  new  trial  or  a  new  hearing  for  fraud, 
newly-discovered  evidence,  clerical  error,  or  other  sufficient 
cause ;  the  appellate  division  has  the  same  power  as  the  surro- 
gate and  his  determination  must  be  reviewed  as  if  the  original 
application  was  made  to  the  appellate  division.101 

Objections  not  urged  in  the  lower  court.     Objections 

not  urged  before  the  referee  or  surrogate  cannot  ordinarily 
be  urged  on  the  appeal  to  the  appellate  division,  though  an 
objection  to  the  jurisdiction  of  the  surrogate's  court  can  be 
first  urged  on  appeal.102 

Questions    raised    by    respondents.     If    a    respondent 

wishes  to  raise  any  question  between  himself  and  any  of  the 
other  respondents,  he  must  appeal  from  the  decree.103 

§  2899.     Judgment  or  order. 

The  appellate  court  may  reverse,  affirm,  or  modify  the  decree 
or  order  appealed  from,  and  each  intermediate  order,  specified 
in  the  notice  of  appeal,  which  it  is  authorized  by  law  to  review, 
and  as  to  any  or  all  of  the  parties ;  and  it  may,  if  necessary  or 
proper,  grant  a  new  trial  or  hearing.  The  decree  or  order  ap- 
pealed from  may  be  enforced,  or  restitution  may  be  awarded, 
as  the  case  requires,  as  on  an  appeal  from  judgment.104 

Will,  56  App.  Div.  277,  67  N.  Y.  Supp.  879;  Matter  of  Eisner's  Estate, 
6  App.  Div.  563,  39  N.  Y.  Supp.  718;  Matter  of  Hyde,  47  State  Rep.  208, 
19  N.  Y.  Supp.  743. 

looMcMahon  v.  Harrison,  6  N.  Y.  (2  Selrl.)  443. 

ioi  Code  Civ.  Proc.  §  2481,  subd.  6;  Matter  of  Harlow,  73  Hun,  433,  26 
N.  Y.  Supp.  469. 

102  Objection  may  be  urged  in  court  of  appeals  though  not  urged  in 
appellate  division.     Fiester  v.  Shepard,  92  N.  Y.  251. 

103  Ross  v.  Ross,  6  Hun,  80. 

104  Code  Civ.  Proc.  §  2587. 


3990  APPEALS  FROM  SURROGATE'S  COURT.  §  2899 


Judgment  or  Order. 


It  seems  that  no  "judgment''  can  be  entered  on  appeal  from 
an  order  in  a  special  proceeding.105 

Reversal  for  erroneous  rulings  on  admission  of  evidence. 

No  decree  or  order  shall  be  reversed  for  an  error  in  admitting 
or  rejecting  evidence,  unless  it  appears  to  the  appellate  court 
that  the  exceptant  was  necessarily  prejudiced  thereby.106 
Error  in  admitting  or  rejecting  evidence  is  not  ground  for  re- 
versal unless  the  appellate  court  is  satisfied  that  the  result 
would  be  changed  if  the  rejected  evidence  was  admitted  or  the 
evidence  erroneously  admitted  was  rejected ; 107  but  if  the  evi- 
dence admitted  or  rejected  was  important,  and  the  court  can- 
not say  that,  notwithstanding  the  error,  the  judgment  is  right, 
or  if  it  entertains  a  reasonable  doubt  on  the  subject,  there 
must  be  a  reversal.108 

Award  of  jury  trial  on  reversal  of  probate.     Where  the 

reversal  or  modification  of  a  decree  by  the  appellate  court  is 
founded  upon  a  question  of  fact,  the  appellate  court  must,  if 
the  appeal  was  taken  from  a  decree  made  upon  a  petition  to 
admit  a  will  to  probate  or  to  revoke  the  probate  of  a  will,  make 
an  order  directing  the  trial,  by  a  jury,  of  the  material  questions 
of  fact,  arising  upon  the  issues  between  the  parties.  Such 
an  order  must  state,  distinctly  and  plainly,  the  questions  of 
fact  to  be  tried ;  and  must  direct  the  trial  to  take  place,  either 
at  a  trial  term  of  the  supreme  court,  specified  in  the  order,  or 
in  the  county  court  of  the  county  of  the  surrogate.109 

105  Libbey  v.  Mason,  112  N.  Y.  525. 

ioe  Code  Civ.  Proc.  §  2545.  Matter  of  Yetter,  44  App.  Div.  404,  61  N. 
Y.  Supp.  175.  Where  evidence  stricken  out  is  printed  in  the  record,  a 
reversal  will  not  be  ordered  if  the  same  conclusion  would  be  reached 
with  such  evidence  included.  Matter  of  Rice's  Will,  81  App.  Div.  223, 
81.  N.  Y.  Supp.  68.  This  Code  provision  is  merely  declaratory  of  the 
existing  law.     Matter  of  Smith's  Will,  95  N.  Y.  516,  527. 

107  Snyder  v.  Sherman,  88  N.  Y.  656,  followed  in  Matter  of  White's 
Will,  23  State  Rep.  882,  5  N.  Y.  Supp.  295.  See,  also,  Clapp  v.  Fullerton, 
34  N.  Y.  190;  Horn  v.  Pullman,  10  Hun,  473. 

los  Matter  of  Smith's  Will,  95  N.  Y.  516,  527. 

109  Code  Civ.  Proc.  §  2588.  Provision  is  mandatory.  Valentine  v. 
Valentine,  3  State  Rep.  154.  If  the  appellate  division  is  in  doubt  as  to 
whether  the  will  was  the  free  and  voluntary  act  of  the  testator,  a  trial 


2901  APPEALS  FROM  SURROGATE'S  COURT.  3991 


Judgment  or  Order. 


This  Code  provision  applies  to  a  reversal  on  questions  of 
fact  and  not  on  questions  of  law.110  -A  jury  trial  should  be 
ordered  where  the  disposition  which  should  be  made  of  the 
questions  of  fact  presented  by  the  evidence  given  is  not  free 
from  doubt,  and  the  result  reached  in  the  surrogate's  court  is 
not  entirely  satisfactory.111  But  where  there  is  no  conflict  in 
the  facts  and  the  appellate  division  differs  from  the  surrogate's 
court  only  in  the  conclusion  to  be  drawn  from  the  facts,  a  ques- 
tion of  law  is  presented,  and  a  jury  trial  need  not  be  ordered  on 
reversing  the  decree  notwithstanding  the  order  of  reversal 
states  that  the  reversal  was  on  questions  of  fact  as  well  as  of 
law.112 

§  2900.    Remittitur. 

In  the  appellate  division  of  the  supreme  court,  the  order 
made  on  an  appeal  from  a  decree  or  an  order  of  a  surrogate's 
court  must  be  entered  with  the  clerk  of  the  appellate  division 
and  a  certified  copy  thereof  annexed  to  the  papers  transmitted 
from  the  court  below  on  which  the  appeal  was  heard,  must  be 
transmitted  to  the  court  from  which  the  appeal  was  taken,  and 
the  court  below  shall  enter  the  judgment  or  order  necessary  to 
carry  the  determination  of  the  appellate  division  into  effect 


113 


§  2901.     Costs. 

The  appellate  court  may  award  to  the  successful  party  the 
costs  of  the  appeal ;  or  it  may  direct  that  they  abide  the  event 
of  a  new  trial,  or  of  the  subsequent  proceedings  in  the  surro- 
gate's court.     In  either  case,  the  costs  may  be  made  payable 

of  the  issues  must  be  ordered.  Matter  of  Brunor,  21  App.  Div.  259,  47 
N.  Y.  Supp.  681. 

no  Matter  of  Smith's  Will,  96  N.  Y.  661;  Matter  of  Martin's  Will,  98 
N.  Y.  193.  Sufficiency  of  evidence  held  a  question  of  law.  Matter  of 
Rapplee,  66  Hun,  558,  21  N.  Y.  Supp.  801. 

in  Matter  of  Tompkins'  Will,  69  App.  Div.  474,  74  N.  Y.  Supp.  1002; 
Matter  of  Warnock's  Will,  103  App.  Div.  61,  92  N.  Y.  Supp.  643. 

112  Matter  of  Hunt,  110  N.  Y.  278,  282.  See,  also,  Matter  of  Rayner's 
Will,  93  App.  Div.  114,  87  N.  Y.  Supp.  23. 

us  Code  Civ.  Proc.  §  2585. 


3992  APPEALS  FROM  SURROGATE'S  COURT.  §  2901 


Costs. 


out  of  the  estate  or  fund,  or  personally  by  the  unsuccessful 
parly  as  directed  by  the  appellate  court;  or,  if  such  a  direction 
is  not  given,  as  directed  by  the  surrogate.114 

In  a  case  where  the  court  of  appeals  reversed  a  judgment 
of  the  general  term  which  affirmed  a  decree  of  a  surrogate,  but 
affirmed  the  principle  upon  which  the  decree  of  the  surrogate, 
and  the  judgment  of  the  general  term  mainly  proceeded,  so 
that  both  the  appellant  and  the  respondent  succeeded  in  part 
in  establishing  their  respective  positions,  and  the  order  of  re- 
versal concluded  as  follows:  "Costs  in  this  court  to  be  paid 
out  of  the  estate,"  it  was  held  that  all  the  parties  were  entitled 
to  costs,  and  not  the  appellant  only.115 

114  Code  Civ.  Proc.  §  2589.     Costs  held  properly  imposed  on  unsuccess- 
ful party,  in  Matter  of  Martin,  98  N.  Y.  193. 
us  Lawrence  v.  Lindsey,  70  N.  Y.  566. 


PART  III. 

APPEALS  TO  THE  COUNTY  COURT. 


Chapter.  Section. 

1.  General    Considerations 2902-2906 

II.  Taking  the  Appeal 2907-2911 

III.  Stay  of  Execution 2912-2916 

IV.  Return     2917-2926 

V.  Review  and  Judgment  Where  New  Trial  Not  Had.  ...   2927-2938 

VI.  New  Trial  in  County  Court 2939-2941 

VII.  Costs  2942-2940 


CHAPTER  I. 

GENERAL  CONSIDERATIONS. 

Scope  of  part,  §  2902. 

Appeal  as  exclusive  remedy,  §  2903. 

To  what  court  appeal  to  be  taken,  §  2904. 

What  may  be  appealed,  §  2905. 

Who  may  appeal,  §  2906. 

§  2902.     Scope  of  part. 

This  part,  relating  to  appeals  to  the  county  court,  will  be 
limited  to  a  consideration  of  appeals  from  a  justice's  court. 
Appeals  from  city  courts,  in  so  far  as  regulated  by  special  rules, 
will  not  be  treated  of. 

Appeals  from  the  judgments  of  a  justice  are  divided  into  two 
classes,  according  to  whether  the  appellant  seeks  a  new  trial 
in  the  appellate  court.  The  rules  laid  down  in  chapters  one, 
two,  three,  four,  and  seven  apply  equally  well  to  both  classes 


3994  APPEALS  TO  COUNTY  COURT.  §  2903 


Appeal  as  Exclusive  Remedy. 


of  appeals  except  where  it  is  otherwise  stated  in  the  text. 
Chapter  five  applies  only  to  appeals  where  no  new  trial  is  had, 
while  chapter  six  applies  exclusively  to  appeals  where  a  new 
trial  is  demanded. 

Much  of  the  case  law  applicable  to  appeals  to  the  county 
court  has  been  rendered  obsolete  by  amendments  of  the  Codes, 
and  no  attempt  has  been  made  to  more  than  refer  to  such 
obsolete  law.  Old  cases  have  been  accepted  as  precedents  only 
after  a  careful  investigation  of  the  Code  provisions  to  deter- 
mine if  there  has  been  any  change  in  the  statutes. 

§  2903.     Appeal  as  exclusive  remedy. 

"The  only  mode  of  reviewing  a  judgment,  rendered  by  a 
justice  of  the  peace  in  a  civil  action,  is  by  an  appeal. ' ' x 

The  Code  does  not  permit  a  party  against  whom  a  judgment 
has  been  taken  by  default  in  justice  court  to  make  a  strict  mo- 
tion in  the  county  court  for  the  opening  of  the  default  and 
the  granting  of  a  new  trial,  nor  can  he  obtain  any  such  relief 
in  justice  court.  His  only  remedy  is  in  the  form  of  an  appeal, 
which  results  either  in  the  granting  of  a  new  trial,  or  in  a  judg- 
ment of  affirmance  upon  its  refusal.2  But  it  has  been  held 
that  this  Code  provision  does  not  preclude  the  right  of  the 
county  court  to  cancel  of  record  a  judgment  of  a  .justice,  a 
transcript  of  which  has  been  filed  in  the  county  court,  where 
the  judgment  is  void.3 

An  appeal  and  certiorari  are  concurrent  remedies  to  review 
summary  proceedings.4 

1  Code  Civ.  Proc.  §  3044;  Sammis  v.  Nassau  Light  &  Power  Co.,  91 
App.  Div.  7,  86  N.  Y.  Supp.  243.  The  county  judge  has  no  power  to 
vacate  the  judgment  of  a  justice,  on  motion,  where  no  appeal  has  been 
taken.  Douglass  v.  Reilly,  8  Hun,  85.  The  judgment  cannot  be  re- 
viewed by  certiorari.  City  of  Buffalo  v.  Schliefer,  25  Hun,  275.  County 
court  cannot  perpetually  stay  justice's  judgment.  Collier  v.  Van 
Hoesen,  6  Wkly.  Dig.  49.  A  judgment  in  an  action  to  recover  a  pen- 
alty for  violating  a  city  ordinance  is  a  judgment  in  a  "civil"1  action  so 
as  to  be  reviewable  by  appeal.  City  of  Buffalo  v.  Schliefer,  25f  Hun, 
275. 

2  Kilts  v.  Neahr,  101  App.  Div.  317,  91  N.  Y.  Supp.  945. 

3  Daniels  v.  Southard,  23  Misc.  235,  51  N.  Y.,  Supp.  1136. 
^  People  ex  rel.  Van  Allen  v.  Perry,  16  Hun,  461. 


2906  APPEALS  TO  COUNTY  COURT.  3995 


To  what  Court  Appeal  to  Be  Taken. 


§  2904.     To  what  court  appeal  to  be  taken. 

The  appeal  must  be  taken  to  the  county  court  of  the  county 
where  the  judgment  was  rendered,  except  where  the  judgment 
is  rendered  by  a  justice  of  the  peace  of  the  city  of  Buffalo.5 

§  2905.     What  may  be  appealed. 

The  Code  title  relating  to  appeals  from  a  justice  refers  only 
to  appeals  from  judgments,  and  it  follows  that  no  appeal  can 
be  taken  from  an  order  except  where  the  right  to  appeal  is 
expressly  conferred  by  other  Code  provisions  authorizing  an 
appeal  from  certain  orders  made  in  summary  or  special  pro- 
ceedings or  statutory  actions.  For  instance,  the  Code  allows 
an  appeal  from  a  final  order  in  summary  proceedings  to  re- 
cover the  possession  of  real  property,0  or  from  an  order  deter- 
mining a  claim  to  surplus  moneys  remaining  after  the  sale  of 
animals  seized  when  straying  on  a  highway,7  or  from  an  order 
determining  a  demand  for  the  return  of  the  possession  of  such 
animals,s  or  from  a  final  order  made  on  a  petition  in  such  pro- 
ceedings.9 

A  judgment  by  default  is  appealable,10  as  is  a  void  judg- 
ment.11 

The  judgment  in  a  proceeding  to  foreclose  a  mechanic's  lieu 
is  appealable  the  same  as  other  judgments.12 

§  2906.     Who  may  appeal. 

"An  appeal  may  be  taken  by  any  party  aggrieved  by  the 
judgment."13     Only  a  party  can  appeal.     A  party  who  has 

s  Code  Civ.  Proo,  §  3045.  Removal  where  county  judge  is  disquali- 
fied, see  Code  Civ.  Proc.  §  342.  Appeals  from  city  courts  to  county 
court,  see  statutes  creating  particular  city  courts. 

c  Code  Civ.  Proc.  §  2260. 

t  Code  Civ.  Proc.  §  3095. 

s  Code  Civ.  Proc.  §  3102. 

a  Code  Civ.  Proc.  §  3104. 

io  See  Code  Civ.  Proc.  §§  3064,  3068. 

ii  Striker  v.  Mott,  6  Wend.  465;  Catlin  v.  Rundell,  1  App.  Div.  157, 
37  N:  Y.  Supp,  979. 

12  Code  Civ.  Proc.  §  3409. 

is  Code  Civ.  Proc.  §  3045.  Who  is  a  party  "aggrieved"  by  judgment 
of  court  of  record,  see  ante,  §  2570. 


3996  APPEALS  TO  COUNTY  COURT.  §  290G 


Who  May  Appeal. 


not  appeared  before  the  justice  but  has  suffered  judgment  to 
go  against  him  by  default  may  appeal.  A  co-party  may  appeal 
though  the  others  refuse  to  join  in  the  appeal.14  The  successful 
party  may  appeal,15  Both  parties  may  appeal,  in  which  case 
the  appeals  must  be  heard  together  and  one  judgment  entered.10 
A  defendant  as  to  whom  the  action  was  dismissed  by  stipula- 
tion is  not  aggrieved  by  the  judgment,  so  as  to  be  entitled  to 
appeal.17 

If  the  party  entitled  to  appeal  dies  before  the  expiration  of 
the  time  to  appeal,  the  appeal  may  be  taken,  by  leave  of  court, 
by  the  heir,  devisee,  or  personal  representative  of  the  deced- 
ent, at  any  time  within  four  months  after  his  death.18 

14  Mattison  v.  Jones,  9  How.  Pr.  152. 
is  Slaman  v.  Buckley,  29  Barb.  289. 
is  Jones  v.  Owen,  5  Hun,  339. 

it  Jerry  v.  Blair,  62  App.  Div.  590,  71  N.  Y.  Supp.  189. 
is  Code  Civ.  Proc.  §  785,  which  is  made  applicable  to  appeals  from  a 
justice  by  Id.,  §  3347,  subd.  6. 


CHAPTER  II. 

TAKING  THE  APPEAL. 

Time  to  appeal,  §  2907. 
Notice  of  appeal,  §  2908. 

■  Signature. 

Mode  of  service  on  the  justice. 

Mode  of  service  on  respondent. 

Payment  of  costs  and  of  fee  for  return,  §  2909. 
Security  to  perfect  appeal,  §  2910. 
Amendments  and  supplying  omissions,  §  2911. 

Notice  of  appeal. 

Service  of  notice  of  appeal. 

Payment  of  costs. 

§  2907.     Time  to  appeal. 

"An  appeal  must  be  taken  within  twenty  days  after  the 
entry  of  the  judgment  in  the  justice's  docket,  except  that, 
where  a  defendant  appeals  from  a  judgment  rendered  in  an 
action,  wherein  he  did  not  appear  and  the  summons  was  not 
personally  served  upon  him,  the  appeal  may  be  taken  within 
twenty  days  after  the  personal  service  upon  him,  on  the  part 
of  the  plaintiff,  of  written  notice  of  the  entry  of  the  judgment, 
but  not  after  the  expiration  of  five  years  from  the  entry  of 
the  judgment."  1 

This  Code  provision  applies  solely  to  appeals  from  judg- 
ments. The  time  to  appeal  from  orders  made  in  summary  and 
special  proceedings  is  fixed  by  the  Code  provisions  authorizing 
the  appeal.2  The  appeal  must  be  taken  "after"  the  entry  of 
the  judgment;  an  appeal  taken  before  the  judgment  is  entered 
is  premature.3  An  appeal  taken  within  twenty  days  of  the 
time  of  the  entry  of  the  judgment  in  the  "docket  book"  is 

i  Code  Civ.  Proc.  §  3046. 

2  See  Code  Civ.  Proc.  §§  3095,  3102,  3104. 

3  Lewis  v.  Hoffman,  5  Civ.  Proc.  R.  (Browne)  141,  in  which  case  the 


399S  APPEALS  TO  COUNTY  COURT.  §  2908 

Chap.  II.     Taking  the  Appeal. — Time  to  Appeal. 

timely,  though  not  within  twenty  days  of  the  entry  in  the 
justice's  minutes.1  It  is  not  necessary  for  the  successful  party 
in  a  justice's  court  to  give  any  notice  to  his  adversary  to  limit 
the  time  to  appeal,  except  where  defendant  defaults  and  the 
summons  was  not  personally  served.  The  parties  must,  in 
other  cases,  examine  the  justice's  record  and  discover  for  them- 
selves the  decision  of  the  court.  However,  the  time  to  appeal 
from  a  judgment  entered  in  docket  book  by  a  justice  of  the 
peace  does  not  commence  to  run  until  the  docket  book  is  open 
to  the  public.5  If  the  notice  of  appeal  is  not  served  in  time, 
the  laches  can  be  taken  advantage  of  only  by  a  motion  to  dis- 
miss the  appeal,  where  that  fact  does  not  appear  on  the  return 
itself.6 

§  2908.    Notice  of  appeal. 

"An  appeal  is  taken  by  serving  on  the  justice  by  whom  the 
judgment  was  rendered,  and  on  the  respondent,  a  written  no- 
tice of  appeal,  subscribed  either  by  the  appellant  or  by  his  at- 
torney in  the  appellate  court. ' ' '  Verbal  notice  of  appeal  is 
insufficient.8  The  notice  should  be  entitled  as  in  the  justice's 
court.9  Formerly  the  statute  required  the  notice  of  appeal  to 
state  the  grounds  of  the  appeal,10  but  such  statement  is  not 
now  necessary. 

If  a  new  trial  is  desired,  a  demand  therefor  must  be  inserted 
in  the  notice  of  appeal,11  though  the  fact  that  the  notice  of  ap- 

appeal  was  dismissed,  it  being  held  that  the  notice  of  appeal  could  not 
be  amended. 

*  Bewerlin  v.  Hodges,  31  State  Rep.  759,  10  N.  Y.  Supp.  505. 

s  Reid  v.  Defendorf,  87  Hun,  40,  33  N.  Y.  Supp.  954.  In  this  case  the 
justice  went  away  after  entering  the  judgment  and  left  the  docket  book 
in  charge  of  a  relative. 

8  Mills  v.  Shult,  2  B.  D.  Smith,  139. 

i  Code  Civ.  Proc.  §  3046. 

R  People  ex  rel.  Gemmill  v.  Eldridge,  7  How.  Pr.  108. 

a  3  Wait's  Law  &  Pr.  591. 

!o  Andrews  v.  Long,  19  Hun,  303;  Griswold  v.  Van  Deusen,  2  E.  D. 
Smith,  178. 

ii  Code  Civ.  Proc.  §  3068.  The  right  to  a  new  trial  in  the  county 
court  cannot  be  conferred  by  stipulation.  King  v.  Norton,  36  Misc. 
53,  72  N.  Y.  Supp.  591. 


ft  2908  APPEALS  TO  COUNTY  COURT.  3999 

Chap.  II.     Taking  the  Appeal. — Notice  of  Appeal. 


peal  demands  a  new  trial  in  an  action  or  proceeding  where  a 
new  trial  is  not  permissible,  is  not  fatal,  since  such  demand 
may  be  treated  as  surplusage  and  the  appeal  heard  on  the 
law.12 

Signature.     The  notice  must  be  "subscribed  either  by 

the  appellant  or  by  his  attorney  in  the  appellate  court."  13 

Mode  of  service  on  the  justice.     ' '  Service  of  the  notice 

of  appeal  upon  the  justice  must  be  made  by  delivering  it  to  him 
personally,  or  to  his  clerk,  appointed  pursuant  to  law;  but  if 
the  justice  is  dead,  or  if  neither  he  nor  his  clerk  can,  after  rea- 
sonable diligence,  be  found  within  the  county,  service  of  the 
notice  upon  the  justice  may  be  made,  by  delivering  it  to  the 
clerk  of  the  appellate  court."14 

Service  by  mail  seems  to  be  a  "personal"  service  where  the 
postman  delivers  the  notice  into  the  hands  of  the  justice,  within 
the  time  limited  in  which  to  appeal,  especially  where  the  jus- 
tice mails  his  return  and  a  receipt  for  the  costs  sent  with  the 
notice.15 

Mode  of  service  on  respondent.     ' '  Service  of  the  notice 

of  appeal  upon  the  respondent  may  be  made,  by  delivering  it,  in 
any  part  of  the  state,  to  the  respondent  personally,  or  in  one  of 
the  following  methods : 

"1.  If  the  respondent  is  a  resident  of  the  county,  by  leaving 
it  at  his  residence,  with  a  person  of  suitable  age  and  discretion. 
If  he  is  not  a  resident  of  the  county,  and  the  person  who  ap- 
peared as  his  attorney  upon  the  trial  is  a  resident  thereof,  it 

12  Harding  v.  Pratt,  37  Misc.  243,  75  N.  Y.  Supp.  247;  King  v.  Norton, 
36  Misc.  53,  72  N.  Y.  Supp.  591;  Kimball  v.  Rich,  20  State  Rep.  153,  3 
N.  Y.  Supp.  248. 

is  Code  Civ.  Proc.  §  3046,  as  amended  in  1882.  Formerly  it  was  held 
that  an  "indorsement"  was  sufficient.  Horr  v.  Seaton,  18  Wkly.  Dig. 
510;  Burrows  v.  Norton,  2  Hun,  550.  Sufficiency  of  signature  by  attor- 
ney where  his  authority  to  appear  is  not  disclosed,  see  Andrews  V. 
Long,  19  Hun,  303;  Albert  Palmer  Co.  v.  Dickinson,  14  Wkly.  Dig.  191; 
Bishop  v.  Van  Vechten,  10  Abb.  N.  C.  220 

i*  Code  Civ.  Proc.  §  3047.  Service  on  clerk  is  equivalent  to  service 
on  justice  though  service  on, justice  may  be  as  easily  made.  See  Irwin 
v.  Muir,  13  How.  Pr.  409. 

«  Mitchell  v.  Watkins,  21  App.  Div.  285,  47  N.  Y.  Supp.  339. 


tOOO  APPEALS  TO  COUNTY  COURT.  §2909 

Chap.  II.     Taking  the  Appeal. — Notice  of  Appeal. 

may  be  served  upon  the  attorney,  either  personally,  or  by  leav- 
ing it  at  his  residence,  with  a  person  of  suitable  age  and  dis- 
cretion. 

"2.  If  service  within  the  county  cannot  be  made,  with  due 
diligence,  upon  the  respondent  personally,  or  in  the  method 
described  in  the  foregoing  subdivision,  the  notice  of  appeal 
may  be  served  upon  him,  by  delivering  it  to  the  clerk  of  the  ap- 
pellate court."10 

If  the  respondent  resides  in  the  county,  service  may 
be  (1)  personal,  (2)  by  leaving  it  at  his  residence,  or,  (3)  if 
personal  service  or  service  by  leaving  at  residence  cannot  be 
made,  by  delivering  it  to  the  clerk  of  the  county  court.  If  the 
respondent  does  not  reside  within  the  county,  the  service  may 
be  (1)  personal,  (2)  by  service  on  his  attorney  if  the  attorney 
resides  within  the  county,17  or  (3)  if  service  within  the  county 
on  the  respondent  or  the  resident  attorney  cannot  be  made,  by 
delivering  it  to  the  clerk  of  the  county  court.  If  the  respond- 
ent is  a  nonresident  of  the  county,  and  service  cannot  be  made 
on  a  resident  attorney,  it  is  optional  with  the  appellant 
whether  to  serve  him  personally  or  to  deliver  the  notice  to  the 
clerk  of  the  county  court. 1S  The  service  may  be  made  on  re- 
spondent personally  though  he  resides  outside  the  county.19 
A  notice  delivered  to  respondent's  attorney  but  taken  back 
again  is  not  sufficiently  served.20  The  notice  cannot  be  served 
on  the  widow  of  a  party  who  has  died  since  the  rendition  of 
the  judgment,  though  no  administrator  has  been  appointed.21 

§  2909.     Payment  of  costs  and  of  fee  for  return. 

"The  appellant  must,  at  the  time  of  serving  the  notice  of 

is  Code  Civ.  Proc.  §  3048.  Service  on  a  partner  is  service  on  a  firm. 
Miller  v.  Perrine,  1  Hun,  620. 

"  Observe  that  the  attorney  may  be  served  only  where  he  is  a  resi- 
dent of  the  county.  Lake  v.  Kels,  11  Abb.  Pr.  (N.  S.)  37.  If  respond- 
ent is  a  resident  of  the  county,  the  notice  cannot  be  served  on  his  at- 
torney.    Andrews  v.  Snyder,  G  Civ.  Proc.  R.  (Browne)  333. 

is  Lake  v.  Kels,  11  Abb.  Pr.   (N.  S.)  37. 

is  Daniels  v.  Rogers,  36  How.  Pr.  230. 

zoEarll  v.  Chapman,  3  E.  D.  Smith,  216. 

2i  Clark  v.  Snyder,  40  Hun,  330. 


g  2910  TAKING  THE  APPEAL.  4001 

Chap.  II.     Taking-  the  Appeal. — Security  to  Perfect. 

appeal  on  the  justice,  unless  the  justice  is  dead,  pay  to  the 
person  to  whom  it  is  delivered,  the  costs  of  the  action,  included 
in  the  judgment,  and  the  sum  of  two  dollars,  as  the  fee  of  the 
justice  for  making  the  return. ' ' 22 

The  payment  is  necessary  to  perfect  the  appeal,23  although, 
as  will  be  hereafter  noticed,24  the  failure  to  pay  the  costs  or 
fee  may  be  supplied  by  a  nunc  pro  tunc  order  of  the  county 
court.  The  justice  may  waive  the  payment  of  his  fee  for  mak- 
ing a  return,  but  he  cannot  waive  the  respondent's  right  to 
the  payment  of  the  costs  included  in  the  judgment.25 

§  2910.    Security  to  perfect  appeal. 

Security  to  perfect  the  appeal  from  a  judgment  is  required 
only  when  a  new  trial  is  demanded.26  If  a  new  trial  is  de- 
manded, the  undertaking  required  to  stay  proceedings  must 
be  given  at  the  time  of  the  service  of  the  notice  of  appeal  on 
the  justice.27  If  the  undertaking  is  not  given,  the  appeal  may 
be  dismissed,28  unless  the  appellate  court,  instead  of  dismissing 
the  appeal,  allows  an  undertaking  to  be  filed  nunc  pro  tunc,  as 
on  appeals  from  courts  of  record.29  Where  insolvent  sureties 
knowingly  make  a  false  affidavit,  the  appeal  may  be  dis- 
missed.30 The  right  to  move  to  dismiss  the  appeal  because 
of  a  failure  of  the  sureties  on  the  undertaking  to  justify  is 

22  Code  Civ.  Proc.  §  3047.  Historical  review  of  Code  provisions  see 
Thomas  v.  Thomas,  18  Hun,  481. 

23Goss  v.  Hays,  40  App.  Div.  557,  58  N.  Y.  Supp.  35;  People  ex  rel. 
Lincoln  v.  Saratoga  Common  Pleas,  1  Wend.  282. 

24  See  post,  §  2910. 

25  Thomas  v.  Thomas,  18  Hun,  481. 

2o  Foley  v.  Foley,  17  Hun,  235.  Security  to  perfect  appeal  from  final 
order  in  summary  proceedings  to  recover  real  property,  see  Code  Civ. 
Proc.  §  2262.  Security  to  perfect  appeal  from  orders  relating  to  ani- 
mals straying  on  highway,  see  Code  Civ.  Proc.  §§  3103,  3105.  Liability 
on  undertaking,  see  Crandell  v.  Bickerd,  32  Misc.  258,  66  N.  Y.  Supp. 
352. 

27  Code  Civ.  Proc.  §  3069. 

28  Kuntz  v.  Licht,  8  Hun,  14. 

20  Lake  v.  Kels,  11  Abb.  Pr.  (N.  S.)  37. 
so  Elson  v.  Murray,  27  Hun,  536. 

N.  Y.  Prac-  251. 


4002  APPEALS  TO  COUNTY  COURT.  §2911 


Chap.  II.     Taking  the  Appeal. 


not  waived  by  the  service  of  a  notice  of  retainer  and  of  trial.31 
An  appellant  cannot  be  compelled  to  give  a  new  undertaking 
on  the  death  or  insolvency  of  a  surety.32 

§  2911.     Amendments  and  supplying  omissions. 

"Where  the  appellant,  seasonably  and  in  good  faith,  serves 
the  notice  of  appeal,  on  either  the  justice  or  the  respondent, 
but  omits,  through  mistake,  inadvertence,  or  excusable  neg- 
lect, to  serve  it  on  the  other,  or  to  do  any  other  act  necessary 
to  perfect  the  appeal,  the  appellate  court,  on  proof  by  affidavit 
of  the  facts,  may,  in  its  discretion,  permit  the  omission  to  be 
supplied,  or  an  amendment  to  be  made  on  such  terms  as  justice 
requires.33 

This  Code  provision  was  intended  to  prevent  all  injuries 
to  appellants  arising  from  mere  technical  variances  or  omis- 
sions. Any  act  on  the  part  of  the  appellant  which  constitutes  a 
step  in  the  proceeding  to  appeal,  and  which  evinces  his  inten- 
tion in  good  faith  to  perfect  and  prosecute  his  appeal  is  a  suffi- 
cient ground  for  an  amendment.34 

Notice  of  appeal.     The   county  court  may  permit  an 

amendment  of  the  notice  of  appeal,35  as  by  striking  out  the 
demand  for  a  new  trial 36  or  by  adding  a  demand  for  a  new 
trial,37   or  by   correcting  the   date   when   the   judgment   was 

3i  Slattery  v.  Haskin,  42  Hun,  86. 

32  Bonnett  v.  Townsend,  63  Hun,  45,  17  N.  Y.  Supp.  566. 

33  Code  Civ.  Proc.  §  3049.  This  provision  was  first  enacted  in  1880. 
Prior  thereto  there  was  no  power  in  the  courts  to  relieve  a  party  ap- 
pealing from  a  judgment  of  a  justice  from  any  omission  or  neglect  to 
do  any  act  necessary  to  perfect  the  appeal.  This  Code  section  is  copied 
from,  and  is  nearly  identical  with,  section  1303  of  the  Code  which  ap- 
plies to  appeals  from  courts  of  record.  See  ante,  §  2633,  for  cases  con- 
struing section  1303. 

34  Gutbrecht  v.  Prospect  Park  &  C.  I.  R.  Co.,  28  Hun,  497. 

35  Horr  v.  Seaton,  18  Wkly.  Dig.  510.  See,  also,  Jerry  v.  Blair,  62 
App.  Div.  590,  71  N.  Y.  Supp.  189. 

36  McCarthy  v.  Crowley,  24  State  Rep.  815,  5  N.  Y.  Supp.  675;  O'Reilly 
v.  Block,  23  N.  Y.  Supp.  670. 

37Chatfield  v.  Reynolds,  18  Civ.  Proc.  R.  (Browne)  378,  9  N.  Y.  Supp. 
880.     But,  in  such  a  case,  respondent  should  be  restored  to  his  right  to 


§  2911  APPEALS  TO  COUNTY  COURT.  4003 

Chap.   II.     Taking  the  Appeal. — Amendments. 

rendered,38  or  by  adding  the  signature  of  the  name  of  ap- 
pellant's attorney.39 

Service  of  notice  of  appeal.     Defects  in  service  of  the 

notice  of  appeal  may  be  supplied,  provided  the  notice  has  been 
seasonably,  and  in  good  faith,  served  on  either  the  justice 
"or"  the  respondent.40 

Payment  of  costs.     Prior  to  the  enactment,  in  1880,  of 

the  Code  provision  now  under  consideration,  it  was  held  that 
the  failure  to  pay  the  costs  to  perfect  the  appeal  was  a  juris- 
dictional defect  which  could  not  be  relieved  from.41  At  pres- 
ent, however,  there  is  no  question  but  that  the  county  court 
may  permit  the  costs  to  be  paid  nunc  pro  tunc,  to  perfect  the 
appeal,  and  the  exercise  of  its  discretion  will  not  be  reviewed 
by  the  appellate  division.42 

offer  to  compromise,  under  Code  Civ.  Proc.  §  3070,  within  fifteen  days. 
Amos  v.  Bradley,  15  Wkly.  Dig.  262.  Furthermore  it  has  been  held 
that  such  relief  cannot  be  granted  after  the  time  to  appeal  has  expired. 
Thorn  v.  Roods,  47  Hun,  433,  which,  however,  is  disapproved  of  in 
Doughty  v.  Picott,  105  App.  Div.  339,  94  N.  Y.  Supp.  43. 
as  Walrath  v.  Klock,  22  App.  Div.  220,  47  N.  Y.  Supp.  1047. 

39  Gutbrecht  v.  Prospect  Park  &  C.  I.  R.  Co.,  28  Hun,  497. 

40  Where  notice  of  appeal  is  improperly  served,  leave  to  serve  it  on 
the  proper  person  may  be  granted  by  the  county  court.  Andrews  v. 
Snyder,  6  Civ.  Proc.  R.  (Browne)  333. 

4i  Southard  v.  Philips,  7  Hun,  18;  Eldridge  v.  Underhill,  17  Hun,  241; 
Lewis  v.  Hoffman,  5  Civ.  Proc.  R.  (Browne)   141,  145. 

42  Goss  v.  Hays,  40  App.  Div.  557,  58  N.  Y.  Supp.  35,  and  cases  cited. 
In  Black  v.  Maitland,  1  App.  Div.  6,  36  N.  Y.  Supp.  739,  it  was  held 
that  the  county  court  had  power,  where  all  the  costs  are  not  paid  be- 
cause of  a  mistake  of  the  justice,  to  permit  the  appellant  to  perfect  his 
appeal  by  paying  into  court  the  residue  of  the  costs. 


CHAPTER  III. 

STAY  OF  EXECUTION. 

Necessity  for  undertaking,  §  2912. 
Contents  of  undertaking,  §  2913. 
Sureties  on  undertaking,  §  2914. 

Exceptions  to  sufficiency. 

Service  and  delivery  of  undertaking,  §  2915. 

Filing  with  clerk  of  county  court  as  substitute. 

Effect  after  levy,  §  2916. 

§  2912.     Necessity  for  undertaking. 

If  the  appellant  desires  a  stay  of  execution,  he  must  give  a 
written  undertaking.1  It  is  held,  however,  that  on  an  appeal 
from  a  judgment  dismissing  a  replevin  suit,  no  undertaking  is 
required,  since  no  execution  can  issue.2 

§  2913.     Contents  of  undertaking. 

The  undertaking  must  be  to  the  effect  that  if  the  appeal  is 
dismissed,  or  if  judgment  is  rendered  against  the  appellant  in 
the  appellate  court,  and  an  execution  issued  thereupon  is  re- 
turned wholly  or  partly  unsatisfied,  the  sureties  will  pay  the 
amount  of  the  judgment,  or  the  portion  thereof  remaining  un- 
satisfied, not  exceeding  a  sum,  specified  in  the  undertaking, 
which  must  be  at  least  one  hundred  dollars,  and  not  less  than 
twice  the  amount  of  the  judgment,  or,  if  the  judgment  in  the 
justice's  court  is  for  the  recovery  of  a  chattel,  that  the  sureties 

i  Code  Civ.  Proc.  §  3050.  He  need  not  join  with  sureties  in  execution 
thereof.  Code  Civ.  Proc.  §  811.  Procedure  on  appeal  from  final  order 
in  summary  proceeding  to  recover  real  property.  See  Code  Civ.  Proc. 
§  2262.  Order  to  stay  proceedings  must  be  obtained  on  appeal  from 
order  determining  demand  for  possession  of  animal  seized  while  stray- 
ing on  the  highway,  see  Code  Civ.  Proc.  §  3103.     See,  also,  Id.,  §  3105. 

■i  Rich  v.  Conley,  64  N.  Y.  Supp.  333. 


§  2913  APPEALS  TO  COUNTY  COURT.  4005 

Chap.  III.     Stay  of  Execution. — Contents  of  Undertaking. 

will  pay  the  sum  fixed  by  that  judgment  as  the  value  of  the 
chattel,  together  with  the  damages,  if  any,  awarded  for  the 
taking,  withholding,  or  detention  thereof.3 

An  undertaking  in  the  words  of  the  statute  does  not  make 
the  sureties  liable  for  the  amount  of  a  judgment  recovered 
on  a  new  trial  in  the  justice's  court  but  only  "the  judgment 
recovered  in  the  appellate  court."*  The  undertaking  need 
not  express  a  consideration  and  is  sufficient  though  it  adds 
the  words  "on  said  appeal"  to  the  clause,  wherein  the  sure- 
ties agree  to  pay  if  the  judgment  is  affirmed  "on  said  ap- 
peal."4 The  amount  of  the  costs  need  not  be  stated,  in  addi- 
tion to  the  amount  of  damages,0  nor  need  the  day  of  the  rendi- 
tion of  the  judgment  be  stated,7  but  an  erroneous  recital  of  the 
day  the  judgment  was  rendered  is  fatal.8  If  co-parties  jointly 
appeal,  the  undertaking  need  not  be  conditioned  to  pay  the 
judgment  which  may  be  recovered  against  "either"  of  them.9 
If  a  party  dies,  and  his  administrators  appeal,  the  undertaking 
must  be  to  pay  such  judgment  as  may  be  rendered  against  them 
and  not  such  judgment  as  should  be  rendered  against  their 
intestate.10  The  sureties  are  liable  only  for  the  amount  of  the 
justice's  judgment  and  not  for  the  amount  of  the  county  court 
judgment  where  the  undertaking  does  not  refer  to  the  judg- 
ment of  the  county  court  except  as  a  condition  on  which  the 
sureties  become  liable  to  pay  the  justice's  judgment.11 

The  contents  of  the  additional  undertaking  required  on  ap- 
peal from  a  final  order  in  summary  proceedings  to  recover  real 
property  is  prescribed  by  section  2262  of  the  Code. 

8  Code  Civ.  Proc.  §  3050.  Additional  security  beyond  that  prescribed 
by  statute  cannot  be  required.  People  ex  rel.  Tomb  v.  Washington 
Common  Pleas,  1  Cow.  576. 

*  Janeway  v.  Hoft,  22  Civ.  Proc.  R.  (Browne)  290,  19  N.  Y.  Supp.  844. 

b  Doolittle  v.  Dininny,  31  N.  350. 

s  People  ex  rel.  Goodrich  v.  Chatauqua  Common  Pleas,  2  "Wend.  618. 

">  People  ex  rel.  Stebbins  v.  Orleans  Common  Pleas,  2  Wend.  292. 

s  People  ex  rel.  Jewett  v.  Monroe  Common  Pleas,  3  Wend.  426. 

o  People  ex  rel.  Rogers  v.  Saratoga  Common  Pleas,  1  Wend.  281. 

io  People  ex  rel.  Spencer  v.  Monroe  Common  Pleas,  1  Wend.  29. 

ii  Hennion  v.  Kipp,  30  App.  Div.  288,  51  N.  Y.  Supp.  960. 


£006  APPEALS  TO  COUNTY  COURT.  §2915 

Chap.  III.     Stay  of  Execution. 

§  2914.     Sureties  on  undertaking. 

The  undertaking  must  be  executed  by  one  or  more  sureties, 
approved  by  the  justice  who  rendered  the  judgment  or  by  a 
judge  of  the  appellate  court.12  The  necessity  that  the  sureties 
be  approved,  though  not  excepted  to,  is  in  contrast  to  appeals 
from  courts  of  record  in  which  case  no  approval  is  required 
unless  the  sureties  are  duly  excepted  to.13 

Exceptions  to  sufficiency.     Section  1335  of  the  Code, 

which  has  already  been  considered  in  connection  with  appeals 
from  courts  of  record,14  and  which  fixes  the  procedure  for  ex- 
cepting to  the  sufficiency  of  the  sureties,  the  effect  of  a  failure 
to  justify,  etc.,  applies  to  undertakings  on  appeal  from  a  judg- 
ment of  a  justice,15  except  in  so  far  as  it  states  that  no  ap- 
proval of  the  sureties  is  necessary  unless  they  are  excepted 
to.16  The  sureties  must  be  approved  and,  if  excepted  to,  must 
justify.  If  they  do  not  justify,  on  being  excepted  to,  the  un- 
dertaking is  a  nullity,  though  a  new  undertaking  may  be  al- 
lowed to  cure  the  defect.17 

§  2915.     Service  and  delivery  of  undertaking. 

A  copy  of  the  undertaking,  with  a  notice  of  the  delivery 
thereof,  must  be  served  with  the  notice  of  appeal,  and  in  like 
manner.18 

The  delivery  of  the  undertaking  to  the  justice  or  to  his  clerk 
appointed  pursuant  to  law,  and  service  of  a  copy  thereof,  and 
of  notice  of  the  delivery  thereof,  stay  the  issue  of  an  execution 
upon  the  judgment.  If  an  execution  has  been  issued,  the 
service  of  a  copy  of  the  undertaking,  certified  by  the  justice 
or  the  clerk,  or  accompanied  with  an  affidavit,  showing  that 
it  is  a  copy,  and  that  the  original  has  been  duly  filed,  upon 

12  Code  Civ.  Proc.  §  3050. 

13  See  Ross  v.  Markham,  5  Civ.  Proc.  R.  (Browne)  81. 
i*  See  ante,  §  2677. 

is  Code  Civ.  Proc.  §  1350. 

ie,  it  Ross  v.  Markham,  5  Civ.  Proc.  R.  (Browne)  81. 

is  Code  Civ.  Proc.  §  3050. 


2916  APPEALS  TO  COUNTY  COURT.  4007 


Chap.  III.     Stay  of  Execution. 


the  officer  holding  the  execution,  stays  further  proceedings 
thereunder.19 

The  service  of  the  copy  of  the  undertaking  on  the  officer 
holding  the  execution  does  not  relieve  the  appellant  from  the 
duty  of  also  serving  it  on  the  respondent.20 

Filing  with  clerk  of  county  court  as  substitute.     Where 

the  justice  is  dead,  or  cannot  with  due  diligence,  be  found 
within  the  county,  and  he  has  no  clerk,  appointed  pursuant 
to  law,  or  the  clerk  cannot,  with  due  diligence,  be  found  within 
the  county,  the  undertaking  may  be  filed  with  the  clerk  of  the 
appellate  court.  In  that  case,  notice  of  the  filing  must  be 
given  to  the  respondent,  as  prescribed  for  service  of  a  notice 
of  appeal  upon  him.  The  filing  of  the  undertaking  has  the 
same  effect  as  the  delivery  thereof  to  the  justice,  and  a  copy 
thereof,  certified  by  the  county  clerk,  served  upon  the  officer 
holding  an  execution,  has  the  same  effect  as  if  it  was  certified, 
as  prescribed  in  the  last  section.21 

§  2916.     Effect  after  levy. 

The  service  of  the  undertaking,  after  the  levy  of  an  execu- 
tion, does  not  discharge  the  execution  and  take  from  the  officer 
all  right  to  retain  the  goods  levied  on,  but  merely  stays  all 
further  proceedings  on  the  execution.22 

19  Code  Civ.  Proc.  §  3051. 

20  Wells  v.  Dawson,  43  Hun,  509. 
2i  Code  Civ.  Proc.  §  3052. 

22  Smith  v.  Allen,  2  E.  D.  Smith,  259. 


CHAPTER  IV. 

RETURN. 

Necessity,  §  2917. 

Where  justice  is  unable  to  make. 

Affidavits  where  appeal  founded  on  error  of  fact  not  within 

knowledge  of  justice,  §  2918. 
Time,  §  2919. 

Compelling  making  of,  §  2920. 
Preparation,  §  2921. 
Contents,  §  2922. 

Annexing  notice  of  appeal,  undertaking  and  other  papers. 

Seal. 

Filing,  §  2923. 

Conclusiveness,  §  2924. 

Further  or  amended  return,  §  2925. 

Compelling  making  of  return. 

Order. 

Liability  of  justice  for  false  return,  §  2926. 

§  2917.     Necessity. 

Except  where  the  Code  expressly  provides  that  a  return 
need  not  be  made  by  the  justice,  it  is  his  duty,  on  being  paid 
the  fee  therefor,  to  make  a  return  of  the  proceedings  in  the 
action  before  him.  He  must  make  a  return  though  he  has 
gone  out  of  office,  and  such  return  has  the  same  effect  as  if  he 
remained  in  office.1 

If  no  return  is  made,  the  county  court  cannot  affirm  but  can 
only  dismiss  the  appeal.2 

Where  justice  is  unable  to  make.    If  the  justice  dies, 

becomes  a  lunatic,  absconds,  removes  from  the  state,  or  other- 
wise becomes  unable  to  make  the  return,  the  appellate  court 

i  Code  Civ.  Proc.  §  3054.     See,  also,  Id.,  §  3055. 

aBeardsley  v.  Bowker,  6  Wkly.  Dig.  341;  Van  Heusen  v.  Kirkpatrick, 
5  How.  Pr.  422.  That  thirty  days  have  expired  need  not  be  affirmatively 
shown  by  party  moving  to  dismiss.     Condert  v.  Lias,  11  How.  Pr.  264. 


g  2918  APPEALS  TO  COUNTY  COURT.  4009 


Chap.   IV.     Return. — Necessity. 


may  receive  affidavits,  or  examine  witnesses,  as  to  the  evidence 
and  other  proceedings  taken,  and  the  judgment  rendered,  be- 
fore the  justice,  and  may  determine  the  appeal,  as  if  a  return 
had  been  duly  made  by  the  justice.3 

§  2918.     Affidavits  where  appeal  founded  on  error  of  fact  not 
within  knowledge  of  justice. 

Where  an  appeal  is  founded  on  an  "  error  of  fact, " 4  in  the 
proceedings,  not  affecting  the  merits  of  the  action,  and  not 
within  the  knowledge  of  the  justice,5  the  court  may  determine 
the  matter  on  affidavits  6  or,  in  its  discretion,  on  the  examina- 
tion of  witnesses,  or  in  both  methods.7 

"Errors  of  fact"  in  the  proceedings  as  to  which  affidavits 
or  oral  testimony,   or  both,  may  be  received  by  the  county 

3  Code  Civ.  Proc.  §  3056;  Bush  v.  Dennison,  14  How.  Pr.  307;  Valen- 
tine v.  Kelly,  17  Civ.  Proc.  R.  (Browne)  368,  7  N.  Y.  Supp.  184.  This 
provision  prescribes  the  remedy  where  the  stenographic  notes  which 
constitute  the  minutes  of  the  trial  have  been  lost.  Walker  v.  Baer- 
mann,  44  App.  Div.  587,  61  N.  Y.  Supp.  91. 

*  The  words  "error  of  fact"  do  not  refer  to  an  erroneous  finding  of 
the  court  or  jury  on  the  evidence,  but  to  those  errors  of  fact  which 
do  not  appear  from  the  record  or  evidence,  such  as  infancy,  etc.,  of 
some  of  the  parties.  Kasson  v.  Mills,  8  How.  Pr.  377;  Biglow  v.  San- 
ders, 22  Barb.  147.  They  also  refer  to  a  fact  outside  the  record,  which 
renders  the  judgment  void,  and  which,  when  properly  alleged  and 
proved  in  any  action  or  proceeding  in  which  the  judgment  comes  in 
question,  will  defeat  any  title  or  right  claimed  under  it.  Willins  v. 
Wheeler,  28  Barb.  669,  672. 

s  Affidavits  cannot  be  read  when  they  relate  to  any  matter  within 
the  knowledge  of  the  justice,  since  such  facts  must  appear  by  the  re- 
turn. Gibbons  v.  Van  Alstyne,  29  State  Rep.  461,  9  N.  Y.  Supp.  156; 
Jennings  v.  Miller,  10  Misc.  762,  31  N.  Y.  Supp.  814.  Affidavits  relating 
to  alleged  misconduct  of  the  justice  after  the  case  is  submitted  to  him 
for  decision  are  not  permissible,  since  within  the  knowledge  of  the 
justice.  Vallen  v.  McGuire,  49  Hun,  594y  18  State  Rep.  410,  2  N.  Y. 
Supp.  381. 

e  The  affidavits  should  be  served  on  the  respondent  with,  or  before, 
the  notice  of  argument.  Hurd  v.  Beeman,  8  How.  Pr.  254.  Counter  affi- 
davits are  allowable.     Adsit  v.  Wilson,  7  How.  Pr.  64. 

7  Code  Civ.  Proc.  §  3057;  Sammis  v.  Nassau  Light  &  Power  Co.,  91 
App.  Div.  7,  86  N.  Y.  Supp.  243. 


401(1  APPEALS  TO  COUNTY  COURT.  §  2920 


Chap.  IV.     Return. — Affidavits. 


court,  include,  inter  alia,  the  failure  to  serve,  or  defects  in 
the  service  or  return  of,  the  summons  ;s  defects  in  the  copy 
summons  served;9  the  nonresidence  of  defendant;10  the  non- 
residence  of  the  justice  who  tried  the  case ; lx  and  misconduct 
of  jurors  while  deliberating  on  their  verdict.12 

§  2919.     Time. 

"The  justice  must,  after  ten  and  within  thirty  days  from 
the  service  of  the  notice  of  appeal  and  the  payment  of  the  costs 
and  fee,  make  a  return  to  the  appellate  court. ' ' 13 

This  Code  provision  does  not  forbid  the  justice  to  make  his 
return  before  ten  days,14  and  it  has  been  said  that  if  the  return 
is  filed  after  the  expiration  of  the  thirty  days  it  will  be  as 
valid  as  though  made  within  the  time  limited.15  If  the  appeal 
book  does  not  show  when  the  return  was  filed,  it  will  be  pre- 
sumed that  it  was  filed  within  the  statutory  time,  i.  e.,  within 
thirty  days.16 

§  2920.     Compelling1  making  of. 

"The  aopellate  court  may  compel  the  justice,  by  attach- 
ment, to  make  and  file  a  return,  or  a  further  or  amended  re- 
turn.    The  court  is  always  open  for  those  purposes.     Where 

s  Sammis  v.  Nassau  Light  &  Power  Co.,  91  App.  Div.  7,  86  N.  Y.  Supp. 
243;  Iron  Clad  Mfg.  Co.  v.  Smith,  28  Misc.  172,  59  N.  Y.  Supp.  332. 
False  return  of  summons.     Fitch  v.  Devlin,  15  Barb.  47. 

9  Monroe  v.  White,  25  App.  Div.  292,  49  N.  Y.  Supp.  517. 

io  Griffin  v.  Norton,  5  State  Rep.  812;  Larocque  v.  Harvey,  19  Civ. 
Proc.  R.  (Browne)  109,  10  N.  Y.  Supp.  576;  Willins  v.  Wheeler,  8  Abb. 
Pr.  116. 

ii  Tiffany  v.  Gilbert,  4  Barb.  320. 

12  Rose  v.  Smith,  4  Cow.  17;  Harvey  v.  Rickett,  15  Johns.  87.  That 
affidavits  of  jurors  will  be  received  to  sustain  their  verdict  but  not  to 
impeach  it,  see  vol.  3,  pp.  2734,  2735. 

13  Code  Civ.  Proc.  §  1053.  No  return  can  be  compelled  unless  costs 
and  return  fee  are  first  paid.  Aldrich  v.  Ketchum,  12  N.  Y.  Leg.  Obs. 
319. 

14  Lazarus  v.  Ludwig,  17  Misc.  365,  40  N.  Y.  Supp.  63. 

is  3  Wait's  Law  &  Pr.  609,  which  cites  Ex  parte  Kellogg,  3  Cow.  372. 
is  Zoller  v.  Smith,  45  Hun,  319. 


§  2922  APPEALS  TO  COUNTY  COURT.  4011 

Chap.   IV.      Return. — Compelling  Making  of. 

the  justice  has  removed  to  another  county  of  the  state,  the 
appellate  court  may  compel  him  to  make  the  return,  as  if  he 
was  still  within  the  county  where  the  judgment  was  ren- 
dered." 17 

The  justice  cannot  be  compelled,  however,  to  make  a  return 
unless  his  fee  therefor  has  been  paid.ls  The  application  to 
compel  the  justice  to  file  a  return  should  be  based  on  an  affi- 
davit showing  the  default  of  the  justice,  and  the  order  direct- 
ing him  to  file  a  return  should  specify  the  time  within  which 
it  must  be  filed.  If  it  is  not  filed  within  such  time,  an  attach- 
ment may  be  issued.  The  procedure  to  compel  the  justice  to 
do  his  duty  will  not  be  noticed  inasmuch  as  it  in  no  way  differs 
from  other  contempt  proceedings  except  as  modified  by  special 
local  rules  adopted  by  certain  of  the  county  courts. 

§  2921.     Preparation. 

The  justice  should  either  himself  draw  up  the  return  or  it 
should  be  drawn  by  a  clerk  under  his  direction  and  super- 
vision. It  is  improper  for  the  attorney  to  draw  up  the  re- 
turn 19  except  where  he  acts  merely  as  the  justice's  aman- 
uensis,20 though  it  is  held  that  the  mere  fact  that  the  attorney 
draws  it  up  is  not  ground  for  setting  it  aside  unless  some  abuse 
or  injury  to  the  other  party  is  shown.21 

§  2922.     Contents. 

The  contents  of  the  return  depends  on  whether  or  not  the 
appeal  is  for  a  new  trial  in  the  county  court.  If  the  notice 
of  appeal  does  not  demand  a  new  trial,  the  return  must  con- 
tain "all  the  proceedings,  including  the  evidence  and  the  judg- 
ment. "  -     If  the  appellant  has,  in  his  notice  of  appeal,  de- 

i7  Code  Civ.  Proc.  §  3055. 

is  Van  Heusen  v.  Kirkpatrick,  5  How.  Pr.  422. 

io  Hunter  v.  Graves,  4  Cow.  537;  Rudd  v.  Baker,  7  Johns.  548. 

20  Philips  v.  Caswell,  4  Cow.  505. 

2i  Hunter  v.  Graves,  4  Cow.  537. 

22,  23  Code  Civ.  Proc.  §  3053. 


£012  APPEALS  TO  COUNTY  COURT.  §2922 


Chap.   IV.      Return. — Contents. 


manded  a  new  trial  in  a  case  whore  he  is  entitled  thereto,  the 
justice  must  return  "the  summons  together  with  each  warrant 
of  attachment,  order  of  arrest,  or  requisition  to  replevy,  or  ex- 
ecution  granted  by  him  in  the  action,  with  the  proof  of  the 
service  thereof,  the  pleadings  or  copies  thereof,  the  proceed- 
ings upon  the  trial,  and  the  judgment,  with  a  brief  statement 
of  the  amount  and  nature  of  the  claims  litigated  by  the 
parties.  But  he  need  not  return  the  evidence,  or  any  part 
thereof,  unless  he  is  required  so  to  do  by  the  special  order  of  the 
appellate  court. ' ' 23 

The  return  should,  in  itself,  contain  a  complete  history  of 
the  proceedings.24  It  should  appear  from  the  return  how  the 
action  was  commenced,  whether  by  voluntarily  joining  issue 
without  the  service  of  a  summons  or  by  the  service  of  a  sum- 
mons; and  if  by  service  of  the  summons,  when  the  summons 
was  issued,  served  and  returned;  the  time  and  place  of  join- 
ing issue;  the  nature  of  the  pleadings;  the  various  adjourn- 
ments and  upon  whose  motion  the  same  were  granted ;  the  time 
and  place  of  trial;  the  evidence  given  and  the  disposition  of 
the  various  questions  and  objections  arising  during  such  trial; 
the  verdict  of  the  jury,  if  any;  the  judgment  and  the  time 
of  its  rendition;  and  the  time  when  the  appeal  papers  were 
served.25  The  return  should  set  forth  the  return  of  the  sum- 
mons, the  day  when  the  parties  appeared,  where  issue  was 
joined,  the  adjournment,  if  any,  and  the  day  when  judgment 
was  entered.20 

A  return  that  the  justice  issued  a  summons,  and  the  time 
and  place  the  summons  was  returned,  sufficiently  imports  that 
it  was  served  within  the  county.27  So  a  return  that  the  sum- 
mons was  personally  served  on  defendant  on  a  specified  day 
by  a  named  constable  implies  that  the  constable  so  returned.28 

Either  the  originals  or  copies  of  the  pleadings,  or  the  sub- 
stance thereof,  should  be  included  in  the  return.29 

24  Mann  v.  Swift,  3  Cow.  61. 

25  3  Wait's  Law  &  Pr.  610. 

26  Peters  v.  Diossy,  3  E.  D.  Smith,  115. 

27  Potter  v.  Whittaker,  27  How.  Pr.  10. 

28  Avery  v.  Woodbeck,  5  Lans.  498. 

29  Miller  v.  Woodworth,  3  Hill,  529;  Spring  v.  Baker,  1  Hilt.  526. 


§  2923  APPEALS  TO  COUNTY  COURT.  4013 

-    Chap.  IV.      Return. — Contents. 

The  return  should  set  forth  all  the  evidence,30  documentary 
as  well  as  oral,31  except  where  the  notice  of  appeal  demands 
a  new  trial  in  which  case  none  of  the  evidence  need  be  inserted 
unless  so  required  by  a  special  order  of  the  county  court.32 
Where  the  return  sets  forth  evidence  in  detail,  and  it  does  not 
expressly  appear  that  some  is  suppressed,  it  is  presumed  that 
all  is  given.33 

The  return  should  show  the  judgment  rendered,34  and  the 
time  of  rendition. 

Annexing  notice  of  appeal,  undertaking  and  other  pa- 
pers. To  the  return  must  be  annexed  the  notice  of  appeal  and 
the  undertaking,  if  any  has  been  delivered  to  the  justice  or  his 
clerk.35  If  other  papers  are  merely  annexed  to  a  return,  there 
must  be  some  reference  thereto  in  the  return  or  they  will  not 
be  considered ; 36  though  if  returned  with  the  return  and  re- 
ferred to  therein  as  a  part  of  the  proceedings,  they  will  be 
considered  though  not  "annexed"  to  the  return.37  Material 
facts  should  not  be  added  by  way  of  a  postscript  or  memo- 
randum.38 

Seal.     The  return  need  not  be  under  seal.39 


§  2923.     Filing. 

The  justice  must  file  the  return  with  the  clerk  of  the  county 
court.10 


so  Orcutt  v.  Cahill,  24  N.  Y.  578. 

3i  McChesney  v.  Lansing,  18  Johns.  388;  Ogden  v.  Sanderson,  3  E.  D. 
Smith,  166. 

32  Code  Civ.  Proc.  §  3053;  McCann  v.  Sheeke,  5  Wkly.  Dig.  420. 

33  Orcutt  v.  Cahill,  24  N.  Y.  578. 

3*Woodside  v.  Pender,  2  E.  D.  Smith,  390.  No  particular  phraseol- 
ogy is  required,  however.     Slaman  v.  Buckley,  29  Barb.  289. 

ss  Code  Civ.  Proc.  §  3053.  If  notice  of  appeal  not  annexed,  the  ap- 
peal may  be  dismissed.     Cabre  v.  Sturges,  1  Hilt.  160. 

so  Spring  v.  Baker,  1  Hilt.  526. 

37  Stolp  v.  Van  Cortland,  3  "Wend.  492. 

38  Logue  v.  Gillick,  1  E.  D.  Smith,  398. 
33  Scott  v.  Rushman,  1  Cow.  212. 

40  Code  Civ.  Proc.  §  3053;  King  v.  Norton,  36  Misc.  53,  72  N.  Y.  Supp. 
591 


4014  APPEALS  TO  COUNTY  COURT.  §  2925 

Conclusiveness. 

§  2924.     Conclusiveness. 

The  return  is  conclusive  as  to  the  facts  stated  therein  and 
eannot  he  contradicted  by  affidavits.  If  the  return  is  false, 
the  remedy  is  by  an  action  against  the  justice.41  If  the  return 
is  incomplete,  the  remedy  is  by  a  motion  for  a  further  or 
amended  return.  For  instance,  facts  stated  by  a  justice  in  his 
return  cannot  be  contradicted  by  recitals  in  a  written  motion 
made  before  the  justice  and  attached  to  the  return,  but  the 
remedy,  if  the  return  is  incorrect,  is  by  moving  for  a  further 
return.4- 

§  2925.    Further  or  amended  return. 

If  the  return  is  defective,  the  county  court  may  direct  the 
justice  to  make  a  further  or  amended  return,  as  often  as  is 
necessary.43  The  return  will  not  be  set  aside  because  incor- 
rect, untrue,  or  defective  in  its  statements,  but  instead  an 
amended  return  will  be  ordered.  It  is  proper  to  direct  a 
further  return  to  show  whether  the  justice  attended  within 
an  hour  of  the  time  fixed  for  an  adjourned  trial,  where  the 
original  return  so  states  only  inferentially,44  or  where  it  is 
not  shown  how  the  justice  disposed  of  a  material  question  as 
to  the  admissibility  of  evidence,45  or  where  it  is  uncertain  as 
to  the  exact  time  when  a  demand  for  a  jury  trial  was  made  in 
the  justice's  court.46  However,  the  county  court  will  not 
order  the  cause  to  stand  over  until  a  further  return  is  made 
where  it  is  entirely  clear  that  the  supplying  of  the  omission 
will  have  no  effect  on  the  decision.47  Thus,  an  amended  re- 
turn may  be  refused  where  it  is  clearly  apparent  that  the  judg- 

4i  Suiter  v.  Kent,  12  App.  Div.  599,  43  N.  Y.  Supp.  137;  Thompson  v. 
Sheridan,  80  Hun,  33,  29  N.  Y.  Supp.  868;  Collier  v.  Van  Hoesen,  6 
Wkly.  Dig.  49. 

42  Suiter  v.  Kent,  12  App.  Div.  599,  43  N.  Y.  Supp.  137. 

43  Code  Civ.  Proc.  §  3055;  Mull  v.  Ingalls,  62  App.  Div.  631,  71  N.  Y. 
Supp.  1142. 

44  Flint  v.  Gault,  15  Hun,  213. 

45  Matthews  v.  Fiestel,  2  E.  D.  Smith,  90. 

46  Sherman  v.  Green,  90  Hun,  462,  36  N.  Y.  Supp.  53. 

47  Keeler  v.  Adams,  3  Caines,  84. 


§  2926  APPEALS  TO  COUNTY  COURT.  4015 

Liability  of  Justice  for  False   Return. 

merit  roust  be  reversd.48  A  justice  cannot  be  permitted  to 
make  an  amended  return  which  will  absolutely  contradict  the 
first  return,  since  the  remedy  is  an  action  against  the  justice 
for  a  false  return.49 

The  order  for  a  further  return  may  be  granted  of  the  court's 
own  motion,  on  the  motion  of  a  party,  or  even  on  the  motion  of 
the  justice  himself.50  The  facts  to  support  the  motion  must  be 
made  to  appear  by  affidavit. 

Compelling   making   of   return.     The    appellate    court, 

i.  e.,  the  county  court,  may  compel  the  justice,  by  attachment, 
to  make  and  file  a  further  or  amended  return.51 

Order.     The  order  requiring  an  amended  return  should 

specify  the  time  within  which  such  return  must  be  made.  It 
may  require  the  justice  to  answer  specific  interrogatories  in  re- 
gard to  matter  material  to  the  case.52  The  order  for  an  amended 
return  may  be  reviewed  on  an  appeal  from  the  judgment  of  the 
county  court.53 

§  2926.     Liability  of  justice  for  false  return. 

A  justice  acts  ministerially  in  making  a  return  and  hence  he 
is  liable  for  all  damages  sustained  by  an  appellant  by  reason 
of  a  false  return.54  But  in  an  action  against  a  justice  for  a  - 
false  return,  it  must  be  shown  that  appellant  was  injured  by 
the  return  made,  i.  e.,  that  he  would  have  been  successful  if  a 
proper  return  had  been  made.55 

48  Wightman  v.  Clapp,  2  Cow.  517. 

49  Bennett  v.  Taylor,  70  Hun,  51,  23  N.  Y.  Supp.  1094. 
so  See  Simpson  v.  Carter,  5  Johns.  350. 

si  Code  Civ.  Proc.  §  3055. 

52  Smith  v.  Johnston,  30  How.  Pr.  374. 

53  Barber  v.  Stettheimer,  13  Hun,  198. 

si  MacDonell  v.  Buffum,  31  How.  Pr.  154. 
*s  Millard  v.  Jenkins,  9  Wend.  298. 


CHAPTER  V. 

REVIEW   AND   JUDGMENT   WHERE   NEW   TRIAL   NOT 

HAD. 

Stipulation  for  reversal,  §  2927. 
Bringing  case  on  for  hearing,  §  2928. 
On  what  papers  appeal  heard,  §  2929. 

■  Appeal  from  default  judgment. 

Hearing  where  both  parties  appeal,  §  2930. 
Scope  of  review,  §  2931. 

Questions  first  urged  in  county  court. 

Necessity  for  exceptions. 

Presumptions. 

Amendments,  §  2932. 
Grounds  of  reversal,  §  2933. 

Error  in  admitting  or  excluding  evidence. 

Verdict  or  decision  against  the  weight  of  evidence. 

Judgment,  §  2934. 

Reversal  or  dismissal. 

■  Reversal  in  part. 

Reversal,  modification,  or  new  trial. 

■  Setting  off  costs  against  recovery. 

On  appeal  from  a  default. 

Restitution,  §  2935. 

Rehearing,  §  2936. 

Procedure  in  lower  court  where  new  trial  ordered,  §  2937. 

Judgment  roll,  §  2938. 

§  2927.     Stipulation  for  reversal. 

If  the  case  is  one  where  the  appellant  is  not  entitled  to,  or 
has  not  demanded,  a  new  trial  in  the  appellate  court,  the  re- 
spondent may,  within  twenty  days  of  the  service  on  him  of  the 
notice  of  appeal,  serve  upon  the  appellant  or  his  attorney  a 
written  stipulation  that  the  judgment  appealed  from  may  be 
reversed  with  five  dollars  costs  and  disbursements  of  the  ap- 
peal, and  thereafter  no  further  steps  shall  be  taken  in  such  ap- 


§  2929  APPEALS  TO  COUNTY  COURT.  4017 

Chap.   V.     Review  Where  No  New  Trial. 

peal,  except  to  enter  judgment  in  pursuance  of  such  stipula- 
tion for  the  enforcement  thereof.1 

If  the  judgment  can  be  sustained  on  any  theory,  though  not 
the  one  on  which  the  case  was  tried,  it  is  not  advisable  to  re- 
sort to  this  remedy.2 


§  2928.     Bringing  case  on  for  hearing. 

In  case  no  stipulation  for  reversal  is  served,  the  appeal  may 
be  brought  to  a  hearing  in  the  appellate  court  at  any  term 
thereof  at  which  such  an  appeal  can  be  heard,  held  after  the 
return  is  filed,  upon  a  notice  by  either  party  of  not  less  than 
eight  days.  It  must  be  placed  upon  the  calendar,  and  must 
continue  thereupon  without  further  notice  until  it  is  finally  dis- 
posed of.  If,  after  being  regularly  placed  upon  the  calendar, 
neither  party  brings  it  to  a  hearing  before  the  end  of  the  sec- 
ond term  thereafter  at  which  it  might  be  noticed  for  hearing 
and  heard,  the  court  must  dismiss  the  appeal  unless  it  directs 
the  same  to  be  continued  for  cause  shown.3 

After  serving  a  notice  of  argument,  the  party  should  file  a 
note  of  issue  with  the  clerk  of  the  county  court. 

If  the  case  is  regularly  noticed  for  argument  and  placed  on 
the  calendar,  it  will  remain  on  the  calendar  at  subsequent 
terms  without  any  further  notice  by  either  party,  but  the  case 
cannot  be  brought  on  for  argument  at  any  subsequent  term, 
except  by  motion,  of  which  at  least  eight  days'  notice  must  be 
given.4 

§  2929.     On  what  papers  appeal  heard. 

The  appeal  must  be  heard  on  the  original  papers,  or  a  certified 
copy  thereof,  and  a  copy  or  copies  thereof  need  not  be  fur- 
nished for  the  use  of  the  court.5     The  appeal  is  heard  on  the 

i  Code  Civ.  Proc.  §  3062. 

2  3  Wait's  Law  &  Pr.  604. 

s  Code  Civ.  Proc.  §  3062. 

*  Matthews  v.  Arnold,  14  Hun.  376. 

6  Code  Civ.  Proc.  §  3063. 

N.  Y.  Prac—  252. 


401 S  APPEALS  TO  COUNTY  COURT.  §  2929 

Chap.  V.     Review  Where  No  New  Trial. 

return  alone  except  (1)  where  the  appeal  is  founded  on  an 
error  of  fact  in  the  proceedings,  not  affecting  the  merits  of  the 
action,  and  not  within  the  knowledge  of  the  justice,0  or 
(2)  where  the  appeal  is  taken  from  a  default  judgment  and 
the  defendant  seeks  to  excuse  his  default.7  In  the  two  cases 
mentioned,  in  addition  to  the  return,  affidavits  must  be  pre- 
pared and  served  on  respondent  together  with  the  notice  of 
argument. 

Appeal  from  default  judgment.     If  the  appeal  is  taken 

by  a  defendant  who  failed  to  appear  before  the  justice,  either 
on  the  return  of  the  summons  or  at  the  time  to  which  the  trial 
of  the  action  was  adjourned,  the  judgment  will  not  be  set 
aside  or  proceedings  stayed  thereunder  unless  defendant 
shows  "by  affidavit  or  otherwise,  that  manifest  injustice  has 
been  done,  and  renders  a  satif actory  excuse  for  his  default. ' ' 8 

The  ordinary  practice  is  to  make  the  showing  by  affidavit 
which  must  show  (1)  manifest  injustice  and  (2)  a  satisfactory 
excuse  for  the  default.  The  affidavit  must  state  the  "facts" 
from  which  the  conclusion  of  manifest  injustice  may  be 
drawn.9  Defendant's  affidavit  is  not,  of  itself,  sufficient  to 
show  manifest  injustice,  if  it  is  fully  contradicted  by  plaintiff 
and  other  witnesses.10  The  affidavit  must  clearly  show  the  ex- 
istence of  a  defense.11  The  affidavits  of  other  witnesses  than 
defendant  should  also  be  produced,  if  possible  to  show  that  a 
defense  exists.  If  the  defendant  cannot  produce  the  affidavit 
of  any  witness,  he  should  at  least  show  that  there  are  wit- 
nesses who  refuse  to  give  their  affidavits,  and  who  have  knowl- 
edge of  facts  to  which  they  can  be  compelled  to  testify,  and 
which,  if  proved,  would  reduce  or  disprove  the  plaintiff's 
claim.12     There  is  some  question  as  to  the  propriety  of  allow- 

e  See  ante,  §  291S. 
<■  See  post,  next  paragraph. 
s  Code  Civ.  Proc.  §  3064. 

y  Bates  v.  Gorman,  S  Civ.  Proc.  R.  (Browne)  180;  Monroe  v.  White, 
25  App.  Div.  292,  49  N.  Y.  Supp.  517. 

io  Gardner  v.  Wight,  3  E.  D.  Smith,  334. 

ii  Young  v.  Conklin,  3  Misc.  122,  23  N.  Y.  Supp.  993. 

12,  13  Lent  v.  Jones,  4  E.  D.  Smith,  52. 


§  2931  APPEALS  TO  COUNTY  COURT.  4019 

Chap.  V.     Review  Where  No  New  Trial. 

ing  counter-affidavits,13  but  the  settled  practice  of  the  court  is 
to  receive  such  affidavits.14 

§  2930.     Hearing-  where  both  parties  appeal. 

If  both  parties  appeal,  the  appeals  should  be  heard  together.15 

§  2931.     Scope  of  review. 

The  review  is  not  confined  to  jurisdictional  errors  or  errors 
affecting  the  merits  of  the  action.16  Whether  the  verdict  is 
against  the  weight  of  evidence  may  now  be  reviewed. 

Questions  first  urged  in  county  court.  Objections  can- 
not be  first  urged  in  the  county  court 17  unless  they  could  not 
have  been  obviated  in  the  justice's  court,  as  where  the  objection 
is  to  the  jurisdiction  of  the  justice  over  the  subject-matter.18  It 
cannot  be  first  urged  in  the  county  court  that  the  evidence  was 
nt  to  warrant  a  recovery  by  plaintiff.19 

Necessity  for  exceptions.     An  exception  is  not  necessary 

to  preserve  questions  for  review.20 

Presumptions.    The  judgment  is  to  be  sustained  by  every 

reasonable  and  warrantable  intendment.21  In  other  words,  the 
presumption  is  that  error  was  not  committed,22  and  hence  the 
party  alleging  error  must  make  it  appear  with  reasonable  cer- 
tainty.23 

14  3  Wait's  Law  &  Pr.  643. 

is  Jones  v.  Owen,  5  Hun,  339;  Glassner  v.  Wheaton,  2  E.  D.  Smith, 
352. 

18  Fritze  v.  Pultz,  2  Civ.  Proc.  R.  (Browne)  142. 

it  Eldredge  v.  McNulty,  45  How.  Pr.  440;  Duntz  v.  Duntz,  44  Barb. 
459;  Winters  v.  McMahon,  23  Wkly.  Dig.  119.  Objections  to  summons. 
Lindsay  v.  Tansley,  44  State  Rep.  653,  18  N.  Y.  Supp.  317.  Objections 
to  amount  of  recovery.    Maxon  v.  Hall,  12  Wkly.  Dig.  519. 

is  Post  v.  Black,  5  Denio,  66. 

i"  Smith  v.  Hill,  22  Barb.  656;  Judson  v.  Havely,  59  N.  Y.  Supp.  1018. 

20  Collins  v.  Rockwood,  64  How.  Pr.  57,  60;  Meech  v.  Brown,  1  Hilt, 
257;  Roe  v.  Hanson,  5  Lans.  304. 

-•i  Rickey  v.  Christie,  40  Hun,  278,  285;  Wilson  v.  Elwood,  28  N.  Y. 
117;  Sebring  v.  Stryker,  10  Misc.  289,  30  N.  Y.  Supp.  1053. 

22  Steele  v.  Wells,  56  N.  Y.  Supp.  367. 

as  Hayes  v.  Maytham,  20  Wkly.  Dig.  337. 


4:020  APPEALS  TO  COUNTY  COURT.  §2933 

chap.  V.     Review  Where  No  New  Trial. 

§  2932.     Amendments. 

The  county  court  may  allow  an  amendment  to  prevent  a  re- 
versal, where  it  does  not  affect  the  merits.  But  an  amendment 
will  not  be  allowed  on  appeal  where  it  will  not  cure  the  error 
committed  by  the  justice.24  So  the  county  court  cannot  amend 
the  justice's  judgment  by  adding  another  party  as  a  judgment 
debtor.25  The  order  allowing  an  amendment  may  impose 
terms.26 

§  2933.     Grounds  of  reversal. 

The  county  court  "must  render  judgment  according  to  the 
justice  of  the  case,  without  regard  to  technical  errors  or  defects, 
which  do  not  affect  the  merits."  27  For  instance,  objections  to 
the  form  of  process  are  to  be  disregarded  as  technical.28  The 
judgment  must  be  sustained  unless  some  vital  error  has  been 
committed,  especially  where  the  judgment  is  by  default.29  The 
party  who  prevails  in  the  justice 's  court  is  entitled  to  have  the 
judgment  so  construed  on  appeal  as  to  sustain  it  if  possible.30 
But  while  the  appeal  must  be  decided  according  to  the  justice  of 
the  case,  yet  the  county  court  will  reverse  for  slight  errors 
where  it  appears  uncertain  as  to  which  party  should  be  suc- 
cessful.31 The  judgment  may  be  reversed  for  any  error  in  the 
proceedings,  whether  of  law  or  fact,  which  affects  the  substan- 
tial rights  of  the  appellant.32 

-4  American  Book  Co.  v.  Watson,  24  Misc.  524,  53  N.  Y.  Supp.  974. 
25  Bister  v.  Goodyear,  55  App.  Div.  190,  66  N.  Y.  Supp.  951. 
so  O'Neill  v.  Morris,  28  Misc.  613,  59  N.  Y.  Supp.  1075. 

27  Code  Civ.  Proc.  §  3063;  Osincup  v.  Nichols,  49  Barb.  145.  Espe- 
cially should  this  rule  be  enforced  where  defendant  appears  and 
answers  but  does  not  defend.  Marble  v.  Towman,  5  App.  Div.  613,  39 
N.  Y.  Supp.  350. 

28  Cornell  v.  Bennett,  11  Barb.  657.  See,  also,  Griffin  v.  Jackson,  36 
State  Rep.  110,  13  N.  Y.  Supp.  321. 

29  Bell  v.  Moran,  25  App.  Div.  461,  464,  50  N.  Y.  Supp.  982;  Helmick 
v.  Churchill,  92  Hun,  524,  36  N.  Y.  Supp.  1028. 

so  Putnam  Foundry  &  Mach.  Co.  v.  Young,  55  App.  Div.  623,  67  N.  Y. 
Supp.  16. 

si  Strawbridge  v.  Vandenburgh,  32  State  Rep.  493,  10  N.  Y.  Supp.  610. 
22  Fritze  v.  Pultz,  2  Civ.  Proc.  R.  (Browne)  142. 


§  2933  APPEALS  TO  COUNTY  COURT.  4021 

Chap.   V.     Review  Where  No  New  Trial. 

The  rule  is  to  be  liberal  in  reviewing  the  proceedings  of 
justices'  courts  as  respects  regularity  and  form  but  strict  in 
holding  them  to  the  exact  limit  of  jurisdiction  prescribed  by  the 
statute.33 

The  county  court  will  not  be  astute  to  discover  errors  in  pro- 
ceedings of  a  justice  in  cases  of  default  where  the  defendant 
refuses  to  appear.34 

It  is  ground  of  reversal  that  the  justice  enters  the  jury  room 
and,  on  request,  informs  the  jury  that  a  verdict  for  plaintiff  will 
carry  costs,35  but  not  that,  on  request,  he  read  the  jury  a  part 
of  the  testimony,  in  the  absence  of  the  parties  or  their  attor- 
neys.36 

Error  in  admitting  or  excluding  evidence.  Error  in  ad- 
mitting or  excluding  evidence  is  not  ground  of  reversal  if  the 
county  court  is  satisfied  that  the  judgment  is  right.37 

Verdict   or   decision  against  the  weight  of  evidence. 

Prior  to  the  1900  amendment  of  section  3063  of  the  Code,  a 
county  court  was  not  permitted  to  reverse  a  justice's  judgment 
because  against  the  weight  of  evidence.  Until  this  amendment 
the  rule  was  that  where  there  was  evidence  on  both  sides,  with 
only  slight  evidence  in  support  of  the  judgment,  the  county 
court  was  not  authorized  to  reverse  the  judgment,  though  it 
arrived  at  a  conclusion  on  the  facts  different  from  that  drawn 
by  the  justice  or  jury.38     The  county  court,  by  such  amendment, 

33  Handshaw  v.  Arthur,  9  App.  Div.  175,  41  N.  Y.  Supp.  61;  Jones  v. 
Reed,  1  Johns.  Cas.  20;  Baker  v.  Dumbolton,  10  Johns.  240. 

34  Helmick  v  Churchill,  92  Hun,  524,  36  N.  Y.  Supp.  1028. 

ss  Abbott  v.  Hockenberger,  31  Misc.  587,  65  N.  Y.  Supp.  566. 

se  Welker  v.  Allen,  39  Misc.  523,  80  N.  Y.  Supp.  382. 

37  Crook  v.  Harper,  8  Daly,  53 ;  Hedden  v.  Nederburg,  28  Misc.  233, 
58  N.  Y.  Supp.  1065.  Error  in  the  admission  of  evidence,  where  it  does 
not  affect  the  merits  is  to  be  disregarded.  Frink  v.  Stevens,  88  Hun, 
283,  34  N.  Y.  Supp.  411;  Merris  v.  Hunt,  71  Hun,  483,  24  N.  Y.  Supp. 
976;  Davison  v.  Luckman,  45  State  Rep.  727,  18  N.  Y.  Supp.  663.  But 
where  there  is  not  other  sufficient  evidence  to  sustain  the  judgment, 
the  error  is  ground  for  reversal.  Carter  v.  Pitcher,  87  Hun,  580,  34 
N.  Y.  Supp.  549. 

ss  Clark  v.  Daniels,  29  App.  Div.  601,  51  N.  Y.  Supp.  177.  But  even 
before  the  amendment,  a  review  was  proper  where  the  question  was  as 


!,»•_'•_»  APPEALS  TO  COUNTY  COURT.  §  2934 

Chap.  V.     Review  Where  No  New  Trial. 

has  no  greater  power  over  judgments  rendered  by  justices,  than 
has  the  appellate  division  over  judgments  of  courts  and  ref- 
erees, and  cannot  reverse  because  the  verdict  or  decision  is 
against  the  weight  of  the  evidence  unless  the  verdict  or  decision 
is  so  plainly  against  the  weight  of  evidence  that  it  can  be  seen 
that  the  justice  or  jury  could  not  reasonably  have  arrived  at 
the  verdict  or  decision  rendered.30  There  should  be  a  reversal 
where  there  is  no  conflict  of  evidence  and  the  judgment  is  con- 
trary to  clear,  undisputed  and  unimpeached  testimony.40 

§  2934.     Judgment. 

The  appellate  court  may  affirm  or  reverse  the  judgment  of 
the  justice  in  whole  or  in  part,  and  as  to  any  or  all  of  the 
parties,  and  for  errors  of  law  or  of  fact,  and  where  the  judg- 
ment is  contrary  to  or  against  the  weight  of  evidence,  the  ap- 
pellate court  may,  on  its  reversal  of  a  judgment,  order  a  new 
trial  before  the  same  justice,  or  before  another  justice  of  the 
same  county  to  be  designated  in  the  order,  and  at  a  time  and 
place  to  be  specified  in  the  order.41 

If,  pending  an  appeal  from  the  order  of  the  county  court 
granting  a  new  trial,  the  proceedings  are  stayed,  the  county 
court,  after  the  affirmance  by  the  appellate  division,  may  fix  an- 
other date  for  the  hearing  before  the  justice.42 

Reversal  or  dismissal.     A  judgment  rendered  without 

jurisdiction  should  be  reversed,  instead  of  dismissing  the  ap- 
peal.43 

Reversal  in  part.  It  is  proper  to  affirm  in  part  and  re- 
verse in  part  where  the  judgment  is  for  different  claims,  or  is 
for  distinct  items  or  articles  of  property,  separable  in  their 

to  the  conclusion  to  be  drawn  from  the  evidence  instead  of  one  arising 
on  conflicting  testimony.     Robinson  v.  Rowland,  26  Hun,  501. 

saMurtagh  v.  Dempsey,  85  App.  Div.  204,  83  N.  Y.  Supp.  296;  Brewer 
v.  Califf.  103  App.  Div.  138,  92  N.  Y.  Supp.  627. 

40  Strong  v.  Walton,  27  Misc.  302,  307,  58  N.  Y.  Supp.  761,  and  cases 
cited. 

4i  Code  Civ.  Proc.  §  3063. 

42Velsey  v.  Velsey,  40  Hun,  471. 

43Kucklo  v.  Kleis,  15  Civ.  Proc.  R.  (Browne)  431,  2  N.  Y.  Supp.  358. 


§  2934 


APPEALS  TO  COUNTY  COURT.  4023 


Chap.  V.     Review  Where  No  New  Trial. — Judgment. 


nature,  and  capable  of  being  separated  on  the  record,  both  as  to 
identity  and  value ; 44  but  a  reversal  in  part  is  not  proper  where 
the  damages  are  allowed  for  a  single  claim  or  cause  of  action, 
not  in  its  nature  divisible.45 

Reversal,  modification,  or  new  trial.    The  county  court 

cannot,  on  reversing,  direct  a  judgment  for  a  specified  sum.46 
It  may,  however,  make  a  conditional  reduction  of  the  damages 
even  in  an  action  based  on  a  tort.47 

Setting  off  costs  against  recovery.     If,  upon  the  appeal, 

a  sum  of  money  is  awarded  to  one  party,  and  costs  are  awarded 
to  the  adverse  party,  the  appellate  court  must  set  off  the  one 
against  the  other,  and  render  judgment  for  the  balance.48 

On  appeal  from  a  default.     If  the  appeal  is  taken  by  a 

defendant,  who  failed  to  appear  before  the  justice,  either  upon 
the  return  of  the  summons,  or  at  the  time  to  which  the  trial  of 
the  action  was  adjourned,  and  he  shows,  by  affidavit  or  other- 
wise, that  manifest  injustice  has  been  done,  and  renders  a  satis- 
factory excuse  for  his  default,  the  appellate  court  may  in  its 
discretion,  set  aside  the  judgment  appealed  from,  or  stay  pro- 
ceedings thereunder,  and  by  order  direct  a  new  trial  before  the 
same  justice,  or  before  another  justice  of  the  same  county  desig- 
nated in  the  order,  at  such  a  time  and  place,  specified  in  the 
order,  and  upon  such  terms  as  it  deems  proper.49 

The  purpose  of  this  statute  is  to  provide  a  remedy  for  any 
fraud  practiced,  or  improper  means  employed,  by  a  party  to 
induce  his  adversary  not  to  appear  before  a  justice,  either  on 

a  Shaw  v.  Davis,  55  Barb.  389,  403;  Staats  v.  Hudson  River  R.  Co., 
39  Barb.  298. 

45  Kasson  v.  Mills,  8  How.  Pr.  377. 

46Manheim  v.  Seitz,  21  App.  Div.  16,  47  N.  Y.  Supp.  282;  City  of 
Brooklyn  v.  Brooklyn  City  &  N.  R.  Co.,  11  App.  Div.  168,  42  N.  Y.  Supp. 
371;  Hewitt  v.  Ballard,  16  App.  Div.  466,  44  N.  Y.  Supp.  935. 

47  Powers  v.  Hanford,  7  App.  Div.  343,  39  N.  Y.  Supp.  936;  La  Motte 
v.  Archer,  4  B.  D.  Smith,  46. 

48  Code  Civ.  Proc.  §  3059;  Southard  v.  Becker,  15  Misc.  436,  37  N.  Y. 
Supp.  927. 

49  Code  Civ.  Proc.  §  3064.  Appellant  must  "render  a  satisfactory  ex- 
cuse for  his  default."  De  Bevoise  v.  Ingalls,  88  Hun,  186,  34  N.  Y. 
Supp.  413. 


4,1-2!  APPEALS  TO  COUNTY  COURT.  §2935 

Chap.  V.     Review  Where  No  New  Trial. 

the  return  of  the  summons  or  at  the  time  to  which  the  trial  was 
adjourned,  or  when  such  failure  was  occasioned  by  accident 
or  mistake  or  other  misadventure.  It  does  not  apply  to  a  vol- 
untary abandonment  of  the  case,  as  where  the  defendant  ap- 
pears  and  is  sworn  as  a  witness  for  the  plaintiff,  but  refuses  to 
answer  when  the  case  is  called  or  to  take  any  part  in  the  trial.50 
The  power  to  relieve  is  not  confined,  however,  to  cases  where 
defendant  does  not  answer  on  the  return  day,  but  extends  to  a 
case  where  he  appears  and  pleads  but  fails  to  attend  on  the 
adjourned  day  set  for  trial.51 

The  default  cannot  be  opened  by  the  county  court  until  a 
return  has  been  made.52 

The  exercise  of  this  discretionary  power  is  not  reviewable.53 
Matters  relating  to  the  affidavit  have  already  been  considered.54 

§  2935.     Restitution. 

Where  the  judgment  of  the  justice  is  reversed  or  modified, 
the  appellate  court  may  make  or  compel  restitution  of  property 
or  of  a  right,  lost  by  means  of  the  erroneous  judgment;  but  not 
so  as  to  affect  the  title  of  a  purchaser,  in  good  faith  and  for 
value,  of  property  sold  by  virtue  of  a  warrant  of  attachment 
in  the  action,  or  an  execution  issued  upon  the  judgment.  In 
that  case,  the  appellate  court  may  compel  the  value,  or  the 
purchase  price,  to  be  restored,  or  deposited  to  abide  the  event 
of  the  action,  as  justice  requires.  Six  days'  notice  of  an  appli- 
cation for  an  order  for  restitution  must  be  given,  and  if  the 
application  is  granted  before  judgment,  the  proper  direction 
may  be  included  therein.55 

so  Thomas  v.  Keeler,  52  Hun,  318,  5  N.  Y.  Supp.  359;  Risley  v.  Van 
Delinder,  17  Misc.  661,  41  N.  Y.  Supp.  402.  See,  also,  Brown  v.  Niagara 
Mach.  Co.,  7  N.  Y.  Supp.  514. 

5i  Armstrong  v.  Craig,  18  Barb.  387. 

52  Kellock  v.  Dickinson,  5  App.  Div.  515,  39  N.  Y.  Supp.  38. 

53  Tucker  v.  Pfau,  70  Hun,  59,  23  N.  Y.  Supp.  953. 
s*  See  ante,  §  2629. 

55  Code  Civ.  Proc.  §  3058.  This  remedy  is  not  exclusive  so  as  to  pre- 
clude relief  by  action.     Haebler  v.  Myers,  132  N.  Y.  363. 


I  2938  APPEALS  TO  COUNTY  COURT.  4025 

Chap.  V.     Review  "Where  No  New  Trial. 

The  county  court  will  order  restitution  where  it  is  shown  by 
a  transcript  from  the  docket  that  the  judgment  appealed  from 
has  been  satisfied.56  Where  the  judgment  of  reversal  is  not 
final,  it  is  not  a  matter  of  right  to  have  restitution  ordered.57 

In  summary  proceedings,  where  the  county  court  reverses  the 
final  order  in  favor  of  the  landlord,  it  may  award  restitution 
of  the  property.58 

Restitution  should  not  be  ordered  unless  applied  for  on  the 
hearing.59 

§  2936.     Rehearing. 

After  a  reversal  by  the  county  court,  it  cannot  open  the  judg- 
ment on  affidavits  relating  to  the  legal  questions  involved.60 

§  2937.     Procedure  in  lower  court  where  new  trial  ordered. 

Where  a  new  trial  is  directed  before  a  justice,  the  parties 
must  appear  before  him  at  the  time  and  place  specified  in  the 
order  of  the  appellate  court,  without  service  of  any  notice  or  of 
a  copy  of  the  order.  Thereupon  the  like  proceedings  must  be 
had  in  the  action,  as  upon  the  return  of  a  summons  personally 
served.61 

§  2938.     Judgment  roll. 

The  clerk,  immediately  after  entering  final  judgment  upon 
the  determination  of  an  appeal,  must  attach  together  and  file 
such  of  the  following  papers  as  were  used  upon  the  appeal, 
which  constitute  the  judgment  roll : 

1.     The  return  of  the  justice,  or  a  certified  copy  thereof;  the 

se  Hunt  v.  Westervelt,  4  E.  D.  Smith,  225;  Kennedy  v.  O'Brien,  2  E. 
D.  Smith,  41. 

57  Cushing  v.  Vanderbilt,  7  Daly,  512. 

ss  Knox  v.  McDonald,  25  Hun,  268.  See,  also,  Wolcott  v.  Schenk,  16 
How.  Pr.  449. 

59  Frost  v.  Frost,  16  Misc.  430,  39  N.  Y.  Supp.  856. 

«o  Armstrong  v.  Sandford,  60  Hun,  356,  14  N.  Y.  Supp.  840. 

«i  Code  Civ.  Proc.  §  3065. 


4026  APPEALS  TO  COUNTY  COURT.  §  2938 

Chap.  V.     Review  Where  No  New  Trial. 

notice  of  appeal;  and  the  undertaking,  if  any  has  been  given. 

2.  The  verdict,  report,  or  decision,  and  each  offer,  if  any, 
made  as  prescribed  in  article  third  of  this  title. 

3.  A  certified  copy  of  the  judgment,  together  with  each 
notice  of  exceptions,  or  case,  which  is  then  on  file. 

4.  Every  other  paper,  then  on  file,  and  a  certified  copy  of 
every  order,  which  in  any  way  involves  the  merits,  or  neces- 
sarily affects  the  judgment.62 

02  Code  Civ.  Proc.  §  3061. 


CHAPTER  VI. 

NEW  TRIAL  IN  COUNTY  COURT. 

Actions  in  which  demandable,  §  2939. 
Procedure  where  new  trial  not  allowable,  §  2940. 
Procedure  on  new  trial,  §  2941. 

Pleadings  and  amendment  thereof. 

■  Evidence  admissible. 

Review  of  questions  raised  before  justice. 

Dismissal  of  appeal. 

Reference. 

New  trial. 

§  2939.     Actions  in  which  demandable. 

A  trial  de  novo  is  not  permissible  on  an  appeal  from  a  judg- 
ment of  a  justice's  court  or  by  a  justice  of  the  peace  in  the  city 
of  Brooklyn,  or  in  any  of  the  towns  in  the  county  of  Kings.  On 
all  other  appeals  from  a  justice  the  appellant  may,  in  his  notice 
of  appeal,  demand  a  new  trial  in  the  county  court,  and  he  is 
entitled  thereto,  whether  or  not  defendant  was  present  at 
the  trial,  provided  (1)  that  an  issue  of  fact  or  an  issue  of  law 
was  joined  before -the  justice,1  and  (2)  the  sum  for  which  judg- 
ment was  demanded  by  either  party  in  his  pleadings  exceeds 
fifty  dollars  or,  where  in  au  action  to  recover  a  chattel,  the 
value  of  the  property  as  fixed,  together  with  the  damages  re- 
covered, if  any,  exceeds  fifty  dollars.2 

This  Code  provision  is  mandatory  In  the  cases  mentioned, 
a  new  trial  is  demandable  as  a  matter  of  right.  In  other  cases, 
no  new  trial  in  the  county  court  can  be  obtained.  The  right 
to  such  new  trial  cannot  be  conferred  by  stipulation.3 

The  amount  claimed  in  the  pleadings,  and  not  the  amount 

i  Issue  must  have  been  joined  in  justice's  court     Thorn  v.  Roods    J7 
Hun,  433;  McCann  v.  Sheeke,  5  Wkly.  Dig.  420. 
2  Code  Civ.  Proc.  §  3068. 
s  King  v.  Norton,  36  Misc.  53,  72  N.  Y.  Supp.  591. 


1-028  APPEALS  TO  COUNTY  COURT.  §  2939 

Chap.  VI.     New  Trial. — When  Demandable. 

of  the  claim  actually  litigated,  governs  the  right  to  a  new  trial.4 
If  either  the  complaint  or  the  answer  contains  a  demand  for 
judgment  for  more  than  fifty  dollars,  the  appellant  may  demand 
;:  new  trial  in  the  county  court.  There  is  some  question,  how- 
ever, whether  the  answer  authorizes  a  new  trial,  where  it 
merely  alleges  that  the  plaintiff  is  indebted  to  defendant  in  a 
specified  sum  exceeding  fifty  dollars  but  contains  no  demand 
for  a  judgment  exceeding  said  sum,5  though  the  weight  of  au- 
thority holds  that  an  answer  which  sets  up  a  counterclaim  only 
as  matter  of  defense,  without  demanding  an  affirmative  judg- 
ment for  more  than  fifty  dollars  does  not  entitle  the  defeated 
party  to  a  new  trial  in  the  county  court.0  If  the  counterclaim 
is  entirely  unauthorized,  as  where  it  is  not  connected  with 
plaintiff's  cause  of  action,  it  cannot  be  considered  as  giving 
the  right  to  demand  a  new  trial,  though  it  asks  for  judgment 
for  more  than  fifty  dollars.7  But  it  matters  not  that  the  amount 
for  which  judgment  is  demanded  in  the  counterclaim  is  fictitious 
and  fixed  at  a  larger  amount  merely  to  obtain  a  new  trial,8  if 
the  counterclaim  is  a  proper  one.  A  new  trial  may  be  had  in 
the  county  court  on  an  appeal  from  a  judgment  ordering  the 
sale  of  twenty-eight  head  of  cattle  as  strays  on  the  highway, 
though  their  value  is  not  shown,  since  it  will  be  presumed  that 
their  value  exceeds  fifty  dollars.9 

In  an  action  of  replevin,  a  new  trial  is  demandable  where  the 
value  of  the  property  is  fixed  by  the  pleadings  at  a  sum  exceed- 

*  Hayes  v.  Kedzie,  11  Hun,  577. 

s  Se<*  Matteson  v.  Hall,  64  How.  Pr.  515. 

"Green  v.  Waite,  33  Hun,  191;  Royce  v.  Gibbons,  50  Hun,  341,  3  N. 
Y.  Supp.  106;  Dudley  v.  Brinckerhoff,  13  Civ.  Proc.  R.  (Browne)  92. 
Compare,  as  contra,  Matteson  v.  Hall,  64  How.  Pr.  515. 

i  Hinkley  v.  Troy  &  A.  Horse  R.  Co.,  42  Hun,  281;  Hall  v.  Werney,  18 
App.  Div.  565,  46  N.  Y.  Supp.  33.  A  counterclaim  in  an  answer  which 
is  clearly  improper  and  sham  cannot  be  made  the  basis  of  a  demand  for 
a  new  trial  in  the  county  court.  Moore  v.  Trimmer,  17  Civ.  Proc.  R. 
(Browne)  99,  6  N.  Y.  Supp.  430.  See,  also,  Harvey  v..  Van  Dyke,  66 
How.  Pr.  396;  Denniston  v.  Trimmer,  27  Hun,  393. 

s  Baum's  Castorine  Co.  v.  Thomas,  92  Hun,  1,  37  N.  Y.  Supp.  913; 
Thompson  v.  Pine,  5  Hun,  647. 

9  Harding  v.  Pratt,  37  Misc.  243,  75  N.  Y.  Supp.  247. 


§  2940  APPEALS  TO  COUNTY  COURT.  4029 

Chap.  VI.     New  Trial. — When  Demandable. 

ing  fifty  dollars,  as  well  as  where  it  is  determined  by  the  judg- 
ment of  the  justice.10  On  the  other  hand,  a  new  trial  is  also 
a  matter  of  right,  in  such  a  case,  though  the  sum  for  which 
judgment  was  demanded  in  the  complaint  did  not  exceed  fifty 
dollars,  wiiere  the  damages  actually  recovered,  added  to  the 
fixed  value  of  the  property,  exceeds  that  sum.11 

The  amount  demanded  in  the  pleadings  on  which  the  judg- 
ment is  based,  and  not  in  the  original  pleadings  which  have  been 
amended,  fixes  the  right  to  appeal  for  a  new  trial.12  Thus,  the 
plaintiff,  by  amending  his  complaint  so  as  to  reduce  his  demand 
to  fifty  dollars,  may  prevent  a  new  trial  in  the  county  court, 
where  defendant  does  not  appear,  though  defendant  is  given 
no  notice  of  the  application  to  amend  and  has  failed  to  appear 
because  he  relied  on  his  right  to  a  new  trial  in  the  county 
court.13 

A  new  trial  in  the  county  court  cannot  be  had  in  summary 
proceedings  to  recover  real  property.14 

§  2940.     Procedure  where  new  trial  not  allowable. 

It  has  been  held  that,  if  the  appeal  for  a  new  trial  is  improper, 
the  motion  to  dismiss  the  appeal  may  be  refused  and  the  notice 
of  appeal  amended  so  as  to  make  the  appeal  one  other  than  for 
a  new  trial,  provided  the  time  to  appeal  has  not  expired ;  but 
if  the  time  to  appeal  has  expired  the  appeal  must  be  dismissed.15 
This  decision  seems  to  be  overruled,  however,  by  a  late  case, 
in  so  far  as  it  holds  that  the  appeal  must  be  dismissed  if  the 
time  to  appeal  has  expired.16     The  motion  to  transfer  the  case 

io  Reynolds  v.  Swick,  35  Hun,  278;  Merrill  v.  Pattison,  44  How.  Pr. 
209. 

ii  Merrill  v.  Pattison,  44  How.  Pr.  289. 

12  Hinkley  v.  Troy  &  A.  Horse  R.  Co.,  42  Hun,  281. 

isRisley  v.  Van  Delinder,  17  Misc.  661,  41  N.  Y.  Supp.  402. 

14  Brown  v.  Cassady,  34  Hun,  55. 

is  Thorn  v.  Roods,  47  Hun,  433. 

is  Doughty  v.  Picott,  105  App.  Div.  339,  94  N.  Y.  Supp.  43.  "The  fact 
that  he  asked  in  his  notice  more  than  he  was  entitled  to  does  not  ren- 
der the  whole  notice  inoperative,  nor  deprive  him  of  the  appeal  which 
he  has  in  fact  taken.     In  such  a  case  the  county  court  may,  upon  the 


4030  APPEALS  TO  COUNTY  COURT.  §  2941 


Chap.  VI.     New  Trial. 


from  the  trial  calendar  to  the  law  calendar  may  properly  be 
made  and  determined  in  advance  of  the  trial,  or  it  may  be  made 
at  the  trial  term  of  the  county  court.17 

If  the  justice's  judgment  from  which  the  appeal  for  a  new 
trial  is  taken  is  void,  there  is  no  judgment  to  support  the  appeal 
and  it  must  be  dismissed.18 

§  2941.     Procedure  on  new  trial. 

Upon  an  appeal  to  obtain  a  new  trial  in  the  county  court, 
"after  the  expiration  of  ten  days  from  the  time  of  filing  the 
justice's  return,  the  action  is  deemed  an  action  at  issue  in  the 
appellate  court,  and  all  the  proceedings  therein,  including  the 
entry,  enforcement,  and  review  of  the  judgment,  are  the  same 
as  if  the  action  had  been  commenced  in  the  appellate  court,  ex- 
cept as  otherwise  specially  prescribed  in  chapter  nineteen  of 
the  Code."10 

This  Code  provision  relates  to  procedure,  and  includes  the 

appellant's  application,  remove  the  case  from  the  trial  calendar  to  the 
law  calendar,  and  thereafter  treat  the  case  as  an  appeal  taken  under 
section  3046,  merely;  and  in  such  cases,  if  necessary,  an  order  may  be 
entered  requiring  the  justice  to  make  an  amended  return  that  will  con- 
form to  the  requirements  of  section  3053."     Id. 

it  3  Wait's  Law  &  Pr.  657. 

is  Gillingham  v.  Jenkins,  40  Hun,  594 ;  Gould  v.  Patterson,  87  Hun, 
533,  34  N.  Y.  Supp.  289. 

19  Code  Civ.  Proc.  §  3071.  The  new  trial  may  be  determined  though 
it  appears  thereon  that  the  justice  had  no  jurisdiction  because  the  ac- 
counts proved  exceeded  $400.  Crannell  v.  Comstock,  12  Hun,  293.  This 
Code  provision  prescribing  the  time  when  issue  is  deemed  to  be  joined 
in  the  appellate  court  should  be  construed  to  relate  to  the  issue  only, 
and  in  no  way  to  affect  the  time  when  the  action  shall  be  deemed  pend- 
ing in  the  county  court.  The  action  is  no  less  in  the  county  court  after 
the  notice  of  appeal  is  served,  and  before  the  action  is  at  issue  in  the 
county  court,  than  is  an  action  in  the  supreme  court  after  the  summons 
is  served,  and  before  an  issue  is  joined  by  the  service  of  an  answer  or 
demurrer.  It  follows  that  an  attorney  at  law  for  defendant  (respond- 
ent) may  serve  an  offer  of  judgment  before  the  expiration  of  the  ten 
days,  and  this  is  so  though  defendant  had  not  previously  appeared  in 
the  county  court.  Cutting  v.  Jessmer,  101  App.  Div.  283,  91  N.  Y.  Supp. 
658. 


•§  2941  APPEALS  TO  COUNTY  COURT.  4Q31 

Chap.  VI.     New   Trial. — Procedure. 

power  of  the  court  to  allow  amendments  to  the  pleadings  so  as 
to  permit  the  trial  of  issues  which  were  not  raised  in  the  court 
below.20  If  no  offer  to  allow  judgment  is  made,  the  trial  pro- 
ceeds in  the  same  manner  as  an  action  commencd  by  the  service 
of  a  summons  and  brought  before  the  county  court  in  accord- 
ance with  the  ordinary  practice  in  a  court  of  record.  A  notice 
of  trial  cannot  be  served  until  the  expiration  of  ten  days  from 
the  filing  of  the  return.  After  the  notice  of  trial  is  served,  a 
note  of  issue  should  be  filed  with  the  clerk  of  the  county  court. 

Pleadings  and  amendment  thereof.     The  action  is  tried 

in  the  county  court  on  the  pleadings  used  in  the  justice's  court, 
subject  to  amendments  allowed  by  the  county  court.21  Prior  to 
the  amendment  in  1865  of  section  366  of  the  old  Code,  it  was 
held  that  the  issues  in  the  justice's  court  could  not  be  changed 
by  amendment  in  the  county  court  on  appeal  to  it  for  a  new 
trial.22  After  the  Code  was  amended  so  as  to  permit  the  county 
court  to  allow  amendments,  it  was  held  that  no  material  amend- 
ment affecting  the  issues  could  be  allowed,  but  only  such 
-changes  of  the  pleadings  as  to  enable  the  parties  fully  and 
fairly  to  try  such  issues.23  In  a  later  case,  an  amendment  was 
held  proper  though  it  increased  the  amount  demanded  to  a  sum 
•exceeding  the  justice's  jurisdiction.24  No  good  reason  is  appar- 
ent why  the  power  to  amend  should  not  be  as  comprehensive 
-as  that  exercised  in  actions  originally  commenced  in  a  court  of 
record,  and  it  is  submitted  that  the  authorities  sustain  the 
proposition.25  The  complaint  cannot  be  amended  so  as  to 
change  the  character  of  the  action  from  contract  to  tort. 

20  Gould  v.  Patterson,  87  Hun,  533,  34  N.  Y.  Supp.  289. 

2i  Section  2944  of  the  Code  provides  that  "the  court  must,  upon  appli- 
cation, allow  a  pleading  to  be  amended,  at  any  time  before  the  trial, 
-or  during  the  trial,  or  upon  appeal,  if  substantial  justice  will  be  pro- 
moted thereby."  This  provision  applies,  however,  it  seems,  only  to 
amendments  in  the  justice  court. 

22  Savage  v.  Cock,  17  Abb.  Pr.  403. 

23  Reno  v.  Millspaugh,  14  Hun,  229.  New  and  affirmative  defenses, 
such  as  payment,  set-off,  etc.,  refused.     Id. 

24  Jacob  v.  Watkins,  10  App.  Div.  475,  42  N.  Y.  Supp.  6. 

25  See  Gould  v.  Patterson,  87  Hun,  533,  34  N.  Y.  Supp.  289;  Paddock 
v.  Barnett,  88  Hun,  381,  34  N.  Y.  Supp.  834;  Cramer  v.  Lovejoy,  41  Hun, 
581. 


4032  APPEALS  TO  COUNTY  COURT.  §  9941 


•    VI.     New   Trial. — Procedure. 


Evidence  admissible.     The   evidence   admissible   under 


the  pleadings  is  the  same  ;is  would  have  been  admissible  in  the 
justice's  court.  For  instance,  payment  of  defendant's  counter- 
claim, subsequent  to  the  appeal,  may  be  shown  on  the  new  trial 
in  the  county  court  without  any  reply,  since  a  reply  is  not  neces- 
sary  in  an  action  before  a  justice  to  authorize  a  defense  to  a 
counterclaim.27 

Review  of  questions  raised  before  justice.     Under  the 

old  Code,  the  county  court,  on  an  appeal  for  a  new  trial,  was 
required  to  pass  on  certain  questions  of  law  raised  in  the 
justice's  court  "before  the  trial,"  2S  but  now  the  questions 
raised  before  the  justice  are  not  reviewable  in  the  county 
court.-9  It  follows  that  an  appeal  from  the  judgment  of  the 
county  court,  where  a  new  trial  has  been  had,  does  not  bring 
up  the  proceedings  in  the  justice 's  court.30 

Dismissal  of  appeal.  Section  2863  of  the  Code  specific- 
ally mentions  certain  cases  of  which  "a  justice  of  the  peace 
cannot  take  cognizance."  Among  these  are  actions  where  the 
title  to  real  property  comes  in  question  and  where  accounts 
exceeding  four  hundred  dollars  are  involved.  The  question  has 
arisen  whether,  where  the  record  does  not  show  that  the  ques- 
tion was  raised  before  the  justice,  the  appeal  for  a  new  trial 
must  be  dismissed  where  it  appears  in  the  trial  in  the  county 
court  that  the  action  is  one  embraced  within  this  Code  section. 
The  rule  laid  down  under  the  old  Code  that  the  case  could  be 
dismissed  for  want  of  jurisdiction  where  a  question  of  title  is  in- 
volved in  the  trial  in  the  county  court 31  is  obsolete.  If  the 
record  does  not  show  that  the  title  to  the  land  was  disputed  in 
the  proceedings  before  the  justice,  the  appeal  cannot  be  dis- 
missed because  of  the  showing  in  the  county  court.32     So  it  is 

26  Burch  v.  Spencer,  15  Hun,  504. 

2T  Utter  v.  Nelligan,  92  Hun,  185,  36  N.  Y.  Supp.  591. 

28  Stevens  v.  Benton,  2  Lans.  156;  Maxon  v.  Reed,  8  Hun,  618;  Stevens 
v.  Benton,  39  How.  Pr.  13. 

29  Pearce  v.  Nester,  50  Hun,  546,  3  N.  Y.  Supp.  720;  Gould  v.  Patterson, 
87  Hun,  533,  34  N.  Y.  Supp.  289. 

so  Burton  v.  Wheeler  &  Wilson  Mfg.  Co.,  5  Wkly.  Dig.  384. 

31  O'Donnell  v.  Brown,  3  Lans.  474. 

32  Gould  v.  Patterson,  63  Hun,  575,  18  N.  Y.  Supp.  332. 


§  2941  APPEALS  TO  COUNTY  COURT.  4033 


Chap.  VI.     New   Trial. — Procedure. 


held  that  the  action  should  not  be  dismissed  though  it  appears 
on  the  new  trial  that  the  justice  had  no  jurisdiction  because 
the  amounts  proved  exceeded  four  hundred  dollars.33  These 
decisions  are  not  in  conflict  with  the  well  established  rule  that 
where  the  judgment  is  void  there  is  no  judgment  to  support  the 
appeal  and  the  appeal  will  be  dismissed.34  A  voluntary  ap- 
pearance in  the  county  court  waives  objections  to  the  jurisdic- 
tion of  the  justice  over  a  foreign  corporation.35 

Reference.     The  county  court  may  order  a  reference  to 

hear  and  determine  the  issues,  on  the  written  consent  of  the 
parties,36  or  in  a  proper  case,  on  the  motion  of  one  party  against 
the  objection  of  the  other ; 3T  and  the  procedure  after  the  ref- 
eree files  his  report  is  the  same  as  if  the  action  was  originally 
brought  in  a  court  of  record.38 

New  trial.     A  new  trial  may  be  moved  for,  after  the 

trial  in  the  county  court,  the  same  as  if  the  action  was  originally 
commenced  in  the  county  court. 

33  Crannell  v.  Comstock,  12  Hun,  293.  The  reason  is  that  the  question 
depends  on  the  evidence  given  on  the  trial  in  the  court  below  and  as  the 
evidence  is  not  returned  the  question  cannot  be  passed  on  by  the  county 
court. 

34  Gillingham  v.  Jenkins,  40  Hun,  594;  Gould  v.  Patterson,  87  Hun, 
533,  34  N.  Y.  Supp.  289. 

35  Burton  v.  Wheeler  &  Wilson  Mfg.  Co.,  5  Wkly.  Dig.  384. 

36  Hyland  v.  Loomis,  48  Barb.  126. 

37  Coy  v.  Rowland,  40  How.  Pr.  385 
ss  Cook  v.  Darrow,  22  Hun,  306. 

N.  Y.  Prac— 253. 


CHAPTER  VII. 

COSTS. 

Right  to  where  appeal  is  not  for  a  new  trial,  §  2942. 
Amount  where  new  trial  not  sought,  §  2943. 
Right  to  after  new  trial  in  county  court,  §  2944. 

As  affected  by  offer  of  judgment  before  the  return. 

As  affected  by  offer  of  judgment  after  action  is  at  issue. 

Amount  where  new  trial  had  in  county  court,  §  2945. 
Disbursements,  §  2946. 

§  2942.     Right  to  where  appeal  is  not  for  a  new  trial. 

If  a  new  trial  is  not  asked,  the  award  of  costs  is  regulated  by 
section  3066  of  the  Code,  as  follows : 

"1.  If  the  appeal  is  dismissed  because  neither  party  brings 
it  to  a  hearing,  *  *  *  costs  shall  not  be  awarded  to  either 
party. 

"2.  If  the  judgment  is  reversed  for  an  error  in  fact,  not  af- 
fecting the  merits,  or  if  a  new  trial,  is  directed  before  the  same 
or  another  justice,  the  costs  of  the  appeal  are  in  the  discretion 
of  the  appellate  court.7 

"3.  If  the  judgment  is  affirmed,  costs  must  be  awarded  to 
the  respondent. 

i  Error  in  holding  that  plaintiff's  proceedings  are  stayed  for  nonpay- 
ment of  costs  is  not  an  "error  in  fact"  so  as  to  make  the  costs  discre- 
tionary. The  words  "error  in  fact"  have  no  reference  to  an  erroneous 
ruling,  or  finding  on  the  evidence,  by  the  justice  or  a  jury,  but  refer  to 
some  occurrence  which  affects  the  validity  of  the  trial,  such  as  service 
of  process  by  one  not  authorized,  infancy  of  a  party  for  whom  no 
guardian  ad  litem  has  been  appointed,  relationship  of  the  justice,  mis- 
conduct of  the  jury,  and  the  like.  Smith  v.  Cayuga  Lake  Cement  Co., 
105  App.  Div.  307,  93  N.  Y.  Supp.  959.  That  discretion  as  to  costs  when 
reversal  is  for  error  in  fact  is  not  reviewable,  see  Monroe  v.  White,  25 
App.  Div.  292,  49  N.  Y.  Supp.  517.  If  judgment  is  reversed  because  the 
judgment  is  contrary  to,  or  against  the  weight  of  evidence,  and  a  new 
trial  is  ordered,  the  costs  are  discretionary.     Code  Civ.  Proc.  §  3063. 


§  2944  APPEALS  TO  COUNTY  COURT.  4035 

Chap.  VII.     Costs. 

"4.  If  the  judgment  is  reversed,  costs  must  be  awarded  to 
the  appellant.2 

"5.  If  the  judgment  is  affirmed  only  in  part,  the  costs,  or 
such  a  part  thereof,  as  to  the  appellate  court  seems  just,  not  ex- 
ceeding ten  dollars,  besides  disbursements,  may  be  awarded  to 
either  party. ' ' 8 

§  2943.     Amount  where  new  trial  not  sought. 

Costs,  when  awarded,  must  be  as  follows,  besides  disburse- 
ments : 

To  the  appellant,  upon  reversal,  thirty  dollars. 

To  the  respondent,  upon  affirmance,  twenty-five  dollars.4 

§  2944.     Right  to  after  new  trial  in  county  court. 

The  party  in  whose  favor  the  verdict,  report,  or  decision  in 
the  county  court  is  given,  is  entitled  to  recover  his  costs  on  the 
appeal,  provided  neither  party  has  made  an  offer  to  compro- 
mise.5 In  the  absence  of  such  an  offer  by  either  party,  the 
party  successful  in  the  county  court  is  entitled  to  costs  without 
regard  to  the  amount  of  his  judgment.6     Before  1885  the  re- 

2  If  the  judgment  is  absolutely  affirmed  or  reversed  for  error  of  law, 
the  appellate  court  cannot  refuse  costs  to  the  successful  party.  Wood 
v.  Brown,  6  Daly,  428.  See,  also,  Harding  v.  Ellston,  19  Civ.  Proc.  R. 
(Browne)  252,  13  N.  Y.  Supp.  549;  Jacks  v.  Darrin,  1  Abb.  Pr.  232. 
Rule  applies  to  reversal  of  order  in  summary  proceedings.  Harrison  v. 
Swart,  34  Hun,  259. 

3  Where  judgment  is  modified,  costs  are  discretionary  and  not  re- 
viewable by  the  appellate  court.  Compton  v.  Long  Island  R.  Co.,  1  State 
Rep.  554. 

4  Code  Civ.  Proc.  §  3067.  Term  fees  are  not  allowable.  Horning  v. 
Smith,  19  Civ.  Proc.  R.  (Browne)  142,  11  N.  Y.  Supp.  790. 

s  Code  Civ.  Proc.  §  3070.  In  such  a  case,  costs  need  not  be  expressly 
awarded.     Wheeler  v.  Mowers,  16  Misc.  331,  39  N.  Y.  Supp.  731. 

8  Pierano  v.  Merritt,  148  N.  Y.  289.  If  no  offer  is  made  after  plaintiff's 
recovery  in  justice's  court,  and  plaintiff  does  not  recover  in  the  county 
court,  defendant  is  entitled  to  costs  though  he  recovers  nothing  on  his 
counterclaim.  Clark  v.  Malzacher,  20  App.  Div.  301,  46  N.  Y.  Supp.  1081. 
It  has  been  held,  however,  that  where  no  offer  is  made  and  plaintiff  re- 
covers less  than  fifty  dollars  he  is  not  entitled  to  costs.  Rhodes  v.  Carr, 
88  Hun,  219,  34  N.  Y.  Supp.  722. 


4036  APPEALS  TO  COUNTY  COURT.  §  2944 


Chap.  VII.     Costs. — After  New  Trial. 


eovery  was  required  to  be  more  favorable  to  the  appellant  "by 
the  sum  of  ten  dollars''  than  the  recovery  in  the  justice's  court 
to  entitle  the  appellant  to  costs  where  no  offer  of  judgment  was 
made.7 

As  affected  by  offer  of  judgment  before  the  return.    If 

the  appeal  is  from  a  judgment  for  a  sum  of  money  only,  either 
party,s  may,  within  fifteen  days  after  service  of  the  notice  of 
appeal,  serve  on  the  adverse  party,  or  upon  his  attorney,9  a 
written  offer  10  to  allow  judgment  to  be  rendered  in  the  county 
court,  in  favor  of  either  party,  for  a  specified  sum.  If  the  offer 
is  not  accepted  it  cannot  be  proved  on  the  trial.  If  the  party, 
within  ten  days  after  the  service  of  the  offer  on  him,  serves  on 
the  party  making  the  same,  or  on  his  attorney,  written  notice 
that  he  accepts  the  offer,  he  must  file  it,  with  an  affidavit  of 
service  of  the  notice  of  acceptance,  with  the  clerk  of  the  ap- 
pellate court,  who  thereupon  must  enter  judgment  accord- 
ingly.11 Where  an  offer  is  made,  the  party  refusing  to  accept  it 
is  liable  for  costs  of  the  appeal  unless  the  recovery  12  shall  be 
more  favorable  to  him  than  the  sum  offered.13 


7  When  judgment  is  more  favorable,  see  Vanderwerken  v.  Brown,  38 
Hun,  234;  Vogel  v.  Schlueter,  73  Hun,  595,  26  N.  Y.  Supp.  435. 

s  Before  the  amendment  of  1885,  the  offer  could  be  made  only  by  the 
respondent. 

9  If  there  is  an  attorney,  the  service  should  be  on  him  rather  than 
on  the  party.  Purvis  v.  Gray,  39  How.  Pr.  1.  The  attorney  in  the  ap- 
pellate court  is  the  attorney  to  be  served.  McLear  v.  Reynolds,  76  App. 
Div.  267,  78  N.  Y.  Supp.  457. 

io  Offer  need  not  be  subscribed  by  the  party  in  person.  Sherman  v. 
Shisler,  6  Misc.  203,  27  N.  Y.  Supp.  215.  It  may  be  subscribed  by  an 
attorney  at  law  though  the  action  is  not  at  issue  in  the  county  court 
because  the  ten  days  from  the  filing  of  the  justice's  return  have  not 
elapsed.  Cutting  v.  Jessmer,  101  App.  Div.  283,  91  N.  Y.  Supp.  658. 
"Where  offer  is  signed  by  the  attorney,  he  need  not  annex  thereto  his 
affidavit  showing  his  authority  to  make  the  offer.  Section  740  of  the 
Code  does  not  apply.     Id. 

ii  Code  Civ.  Proc.  §  3070. 

i2  The  word  "recovery"  means  a  recovery  in  dollars  and  cents  and 
not  a  mere  successful  defense  to  plaintiff's  claim.  Brazee  v.  Town  of 
Hornby,  27  Misc.  129,  58  N.  Y.  Supp.  387. 

is  Code  Civ.  Proc.  §  3070. 


§  294-i  APPEALS  TO  COUNTY  COURT.  4037 


Chap.  VII.     Costs.— After  New  Trial. 


Two  important  questions  have  arisen  in  construing  this  Code 
section.  The  first  is  whether,  where  the  judgment  is  more  fav- 
orable to  the  party  rejecting  the  offer  than  the  offer,  he  is  en- 
titled to  costs  where  the  recovery  is  less  than  fifty  dollars  and 
the  party  recovering  has  made  no  offer  of  judgment.  In  other 
words,  do  sections  3228  and  3229  of  the  Code  which  apply  to 
costs  generally  in  courts  of  record  and  which  prohibit  an  award 
of  costs  to  plaintiff  in  an  action  for  the  recovery  of  money  only 
unless  he  recovers  fifty  dollars  or  more,  and  which  give  defend- 
ant costs  in  such  cases  where  plaintiff  is  not  entitled  thereto, 
apply  to  these  appeals?  The  court  of  appeals  has  held  that  a 
plaintiff  is  not  entitled  to  costs  in  the  county  court  where  he 
recovers  less  than  fifty  dollars,  though  the  judgment  recovered 
by  him  is  more  favorable  than  defendant's  offer,  unless  plaintiff 
himself  has  made  an  offer  to  take  judgment  for  a  specified 
sum  less  than  his  recovery  in  the  county  court,  which  offer  has 
been  refused.14  This  ruling  is  based  on  the  ground  that  section 
3070  of  the  Code,  which  regulates  the  offer  of  judgment,  does 
not  make  any  provision  as  to  who  shall  be  entitled  to  costs 
where  an  offer  of  judgment  is  made  by  one  party  and  not  ac- 
cepted by  the  other  and  the  recovery  is  more  favorable  to  the 
party  refusing  to  accept  the  offer  than  the  sum  offered.  But 
supposing  section  3070  does  not  apply  because  of  such  facts, 
then  the  question  arises  as  to  whether  sections  3228  and  3229  ap- 
ply and  authorize  the  taxation  of  costs  in  favor  of  plaintiff  (the 
party  refusing  the  offer)  where  he  recovers  a  more  favorable 
judgment  for  fifty  dollars  or  more,  or  in  favor  of  defendant; 
where  he  refuses  the  offer  and  plaintiff  recovers  less  than  the 
offer  and  less  than  fifty  dollars.  An  early  case  held  that  sec- 
tions 3228  and  3229  did  not  apply  and  that  where  plaintiff 
makes  an  offer  which  is  not  accepted,  and  he  recovers  less  than 
the  offer,  and  less  than  fifty  dollars,  the  defendant  is  not  enti- 
tled to  costs,  because  section  3229  of  the  Code  does  not  apply.15 
The  reasoning  of  this  case  is  convincing  and  it  is  submitted  that 
the  decision  ought  to  have  been  followed,  but  the  later  cases 

"  McKuskie  v.  Hendrickson,  128  N.  Y.  555. 

16  Zoller  v.  Smith.  45  Hun,  319.     And  see  Watson  v.  Benz,  57  Hun, 
398,  10  N.  Y.  Supp.  799. 


4038  APPEALS  TO  COUNTY  COURT.  §  2044 

Chap.  VII.     Costs. — After  New  Trial. 

have  expressly  held  the  contrary.115  Thus,  it  is  held  that  where 
the  successful  plaintiff  makes  an  offer  which  is  refused,  but  de- 
fendant makes  no  offer,  and  defendant  wholly  succeeds  in  the 
county  court,  defendant  is  entitled  to  costs  under  section  3229 
of  the  Code  because  of  plaintiff's  failure  to  recover  fifty  dollars 
or  more.17  So  it  is  held  that  where  plaintiff  refuses  defendant's 
offer  and  recovers  a  more  favorable  judgment  in  excess  of  fifty 
dollars,  he  is  entitled  to  costs  under  section  3228  of  the  Code.18 

Where  the  offer  to  allow  judgment  for  a  specified  sum,  is  ac- 
cepted, the  party  accepting  cannot  tax  fifteen  dollars  as  costs 
before  notice  of  trial  but  only  his  disbursements,  including  the 
costs  of  the  court  below,  the  return  fee,  and  the  costs  for  serv- 
ing the  notice  of  appeal.19  The  offer,  if  accepted,  is  not  inclu- 
sive of  the  costs  paid  to  perfect  the  appeal.20 

The  second  question  which  is  often  difficult  of  solution  is  in- 
volved in  the  determination  of  when  a  recovery  is  ' '  more  favor- 
able to  him  (the  party  refusing  the  offer)  than  the  sum 
offered."  21  No  general  rule  can  be  laid  down  as  to  what  is  a 
more  favorable  judgment  but  each  case  must  be  decided  to  a 
large  extent  according  to  its  own  circumstances.  The  offer 
must  be  determined  by  the  condition  of  the  pleadings  at  the 
time  it  was  made,  and  hence  if  a  counterclaim  be  subsequently 
pleaded  and  allowed,  its  extinguishment  is  to  be  deemed  bene- 
ficial to  the  plaintiff  to  that  extent.22  Where  the  damages  are 
liquidated,  interest  from  the  date  of  the  offer  to  the  date  of  the 

is  Fowler  v.  Bearing,  6  App.  Div.  221,  39  N.  Y.  Supp.  1034;  Brazee  v. 
Town  of  Hornby,  27  Misc.  129,  58  N.  Y.  Supp.  387,  followed  in  Rose  v. 
Wells,  92  App.  Div.  75,  86  N.  Y.  Supp.  889.  See,  also,  Snyder  v.  Hughes, 
27  Hun,  373;  Quick  v.  Wixon,  27  Hun,  592;  Munson  v.  Curtis,  43  Hun, 
214;  Rhodes  v.  Carr,  88  Hun,  219,  34  N.  Y.  Supp.  722. 

"  Brazee  v.  Town  of  Hornby,  27  Misc.  129,  58  N.  Y.  Supp.  387. 

is  Fowler  v.  Dearing,  6  App.  Div.  221,  39  N.  Y.  Supp.  1034. 

is  Smith  v.  Dederick,  18  Misc.  507,  42  N.  Y.  Supp.  1119. 

20  Hollenback  v.  Knapp,  42  Hun,  207,  followed  in  Lauffer  v.  Bast,  34 
Misc.  408,  69  N.  Y.  Supp.  874. 

2i  What  is  a  more  favorable  judgment  where  offer  is  made  in  action 
commenced  in  court  of  record,  see  vol.  2,  pp.  1998-2001. 

22  Adolph  v.  De  Ceu,  45  Hun,  130,  following  Tompkins  v.  Ives,  36  N. 
Y.  75. 


§  2944         APPEALS  TO  COUNTY  COURT.  4039 

Chap.  VII.     Costs. — After  New  Trial. 

recovery,  included  in  the  verdict,  report,  or  decision  should  be 
taken  into  consideration  in  determining  whether  the  recovery 
is  more  favorable  than  the  offer ; 23  but  if  the  damages  are  un- 
liquidated, the  recovery  should  be  compared  with  the  offer, 
without  adding  interest  to  the  offer  and  without  discounting  the 
amount  of  the  recovery  as  shown  in  the  verdict,  report,  or  de- 
cision.24 The  record  is  prima  facie  evidence  on  the  question 
whether  the  judgment  is  more  favorable  than  the  offer.  If 
there  are  special  circumstances  outside  the  record  affecting  the 
question  they  should  be  made  to  appear  by  affidavits.25  The 
costs  which  an  acceptance  of  the  offer  would  carry  on  the  entry 
of  judgment  are  to  be  added  to  the  offer  in  comparing  the  re- 
covery with  the  offer.26 

As  affected  by  offer  of  judgment  after  action  is  at  issue. 

The  question  of  costs  may  also  be  affected  by  an  offer  to  allow 
judgment  which  is  served  before  the  trial  but  after  the  action 
is  deemed  at  issue  in  the  county  court,  i.  e.,  after  ten  days  from 
the  filing  of  the  justice's  return.  Such  offer  may  be  served  on 
the  adverse  party  by  either  party  "to  allow  judgment  to  be 
taken  against  him,  for  a  sum,  or  property,  or  to  the  effect,  there- 
in specified,  with  or  without  costs.  If  there  are  two  or  more  de- 
fendants, and  the  action  can  be  severed,  a  like  offer  may  be 

23  Pike  v.  Johnson,  47  N.  Y.  1,  followed  in  Rose  v.  Wells,  92  App.  Div. 
75,  86  N.  Y.  Supp.  889.  The  amount  of  such  interest,  and  that  it  was 
allowed,  may  be  shown  by  affidavit.  "The  reason  for  considering  in- 
terest in  determining  whether  a  verdict,  report  or  decision  is  more 
favorable  to  a  party  than  an  offer  of  judgment,  is  not  that  the  party 
accepting  an  offer  of  judgment  would  have  interest  on  the  judgment 
from  the  time  of  its  entry  or  the  use  of  the  sum  offered  if  paid  or  col- 
lected, but  interest  is  considered  because  the  recovery  as  shown  by  the 
verdict,  report  or  decision  actually  includes  interest  that  has  accrued 
between  the  service  of  the  offer  and  the  rendition  of  the  verdict,  or  the 
filing  of  the  report  or  decision.  *  *  *  Interest  should  only  be  com- 
puted for  the  purpose  of  comparison  in  cases  where  it  is  actually  in- 
cluded in  the  recovery."  Rose  v.  "Wells,  92  App.  Div.  75,  8G  N.  Y.  Supp. 
889. 

24  Rose  v.  Wells,  92  App.  Div.  75,  86  N.  Y.  Supp.  889.  See,  also,  Smith 
v.  May,  32  How.  Pr.  222. 

as  Earl  v.  Collins,  23  Wkly.  Dig.  108. 
26  Baldwin  v.  Brown,  37  How.  Pr.  385. 


4nlo  APPEALS  TO  COUNTY  COURT.  §2945 

Chap.  VII.     Costs.— After  New  Trial. 

made  by  one  or  more  defendants,  against  whom  a  separate 
judgment  may  be  taken;  and,  if  it  is  accepted,  the  action  be- 
comes severed  and  may  proceed  against  the  other  defendants 
as  if  it  had  been  originally  commenced  against  them  only.  If 
the  party  receiving  the  offer,  within  ten  days  thereafter,  serves 
upon  the  adverse  party  notice  that  he  accepts  it,  he  may  file  it 
with  proof  of  acceptance,  and  thereupon  the  clerk  must  enter 
judgment  accordingly.  If  the  offer  is  not  thus  accepted,  it 
cannot  be  proved  upon  the  trial,  and  if  the  party  to  whom  it 
was  made  fails  to  obtain  a  more  favorable  judgment,  he  cannot 
recover  costs  from  the  time  of  the  offer  but  must  pay  costs  from 
that  time."27 

Inasmuch  as  this  Code  provision  applies  only  to  cases  where 
the  action  is  deemed  at  issue  in  the  county  court,  it  does  not 
apply  to  an  offer  served  in  less  than  twenty  days  after  the 
service  of  the  notice  of  appeal,  since  the  action  is  not  deemed 
at  issue  until  the  expiration  of  said  twenty  days.28 

§  2945.     Amount  where  new  trial  had  in  county  court. 

Costs,  where  awarded,29  must  be  as  follows,  besides  disburse- 
ments : 

' '  For  all  proceedings  before  notice  of  trial,  fifteen  dollars. 

"For  all  subsequent  proceedings  before  trial,  ten  dollars. 

' '  For  the  trial  of  an  issue  of  law,  fifteen  dollars. 

' '  For  the  trial  of  an  issue  of  fact,  twenty  dollars. 

' '  For  the  argument  of  a  motion  for  a  new  trial  on  a  case,  fif- 
teen dollars. 

"For  each  term,  not  more  than  five,  at  which  the  appeal  is 
regularly  on  the  calendar,  excluding  the  term  at  which  it  is 
tried,  or  otherwise  finally  disposed  of,  ten  dollars. ' ' 30 

27  Code  Civ.  Proc.  §  3072. 

28  Watson  v.  Benz,  58  Hun,  607,  12  N.  Y.  Supp.  51. 

29  The  words  "when  awarded"  do  not  confine  the  right  to  costs  to  cases 
where  costs  are  expressly  awarded,  since  costs  follow  as  of  course  where 
neither  party  makes  an  offer  of  judgment.  Wheeler  v.  Mowers,  16 
Misc.  331,  39  N.  Y.  Supp.  731. 

so  Code  Civ.  Proc.  §  3073. 


§  2949  APPEALS  TO  COUNTY  COURT.  4041 


Chap.  VII.     Costs. 


No  costs  are  taxable,  where  the  county  court  awards  a  new 
trial,  for  services  after  granting  and  before  the  new  trial,  since 
no  provision  is  made  therefor  in  this  Code  section.31 

§  2946.     Disbursements. 

Where  costs  are  awarded  to  the  appellant,  he  may  include, 
in  the  disbursements  upon  the  appeal,  the  costs  and  fee  paid  to 
the  justice  upon  taking  the  appeal;  and,  where  the  judgment 
rendered  by  the  justice  was  against  the  appellant,  he  may  also 
include,  in  those  disbursements,  the  costs  of  the  action  before 
the  justice,  which  he  would  have  been  entitled  to  recover,  if 
the  judgment  had  been  in  his  favor.S2 

Costs  paid  to  the  justice  to  perfect  an  appeal  are  not,  on  re- 
versal, recoverable  from  the  justice  or  his  clerk,  but  can  be 
obtained  only  by  including  them  in  the  disbursements,  as  pro- 
vided for  in  this  Code  section.33  So  such  costs  are  not  recov- 
erable by  action  from  the  respondents  to  whom  they  have  been 
paid.34 

3i  Wheeler  v.  Mowers,  16  Misc.  331,  39  N.  Y.  Supp.  731. 

32  Code  Civ.  Proc.  §  3060.  This  Code  rules  applies  to  appeals  where 
a  new  trial  is  demanded  as  well  as  to  appeals  where  a  new  trial  is  not 
demanded. 

33  Sherwood  v.  Travelers'  Ins.  Co.,  65  How.  Pr.  193. 

34  Bradley  Salt  Co.  v.  Meinhold,  23  Misc.  468,  52  N.  Y.  Supp.  679. 


APPENDIX. 


Scope  of  appendix  and  how  to  use  it.  The  following  appen- 
dix is  intended  merely  as  a  supplement  to  the  first  three  volumes 
of  this  work  so  as  to  bring  them  down  to  date  with  reference  to 
the  Code  and  other  statutory  amendments  and  cases  decided 
since  the  publication  of  the  respective  volumes.  It  includes  all 
the  eases  reported  down  to  183  N.  Y.,  106  App.  Div.,  47  Misc., 
and  95  N.  Y.  Supp.,  together  with  the  statutory  changes 
in  the  practice  up  to  and  including  the  legislative  session  of 
1904-1905. 

A  word  as  to  how  to  use  the  appendix.  After  looking  up  a 
proposition  of  law  in  any  one  of  the  first  three  volumes,  turn  to 
the  appendix  to  ascertain  if  there  has  been  any  statutory  change 
in  the  law,  or  reiteration,  modification,  or  reversal  in  a  late 
case  or  in  a  higher  court.  Another  reason  for  consulting  the  in- 
dex is  that  errors,  clerical  or  otherwise,  so  far  as  called  to  the 
attention  of  the  author,  have  been  corrected  therein.  The  black 
letter  number  at  the  beginning  of  the  paragraph  in  the  appen- 
dix refers  to  the  page  in  Vol.  1,  2,  or  3  to  which  the  appendix 
paragraph  relates.  The  second  light  faced  number  indicates 
the  particular  note  or  section  to  which  the  given  proposition  is 
referable.  Thus,  1942,  n.  81,  means  that  the  proposition  on 
page  1942,  note  81,  is  reiterated,  modified,  added  to,  or  reversed 
by  the  case  cited  in  the  appendix.  If  the  proposition  is  merely 
reiterated,  only  the  title  of  the  case  is  given.  If  the  appendix 
proposition  cannot  be  tacked  to  any  note  number  and  there  are 
two  or  more  sections  on  the  page  referred  to,  the  reference  will 
be  as  follows :    1510,  §  1149,  meaning  page  1510,  section  1149. 

This  appendix  is  not  intended  for  use  independent  of  the 
original  text  but  only  in  connection  with  it  and  after  reference 
to  the  original  text.  Always  consult  the  appendix  last  and  not 
first.  CLARK  A.  NICHOLS. 

Oct.  25,  1905. 


4044  APPENDIX. 

12.  §  5.  Many  of  tlie  late  cases  as  to  what  are  and  what 
arc  qo1  special  proceedings  have  been  collected  in  this  volume 
in  the  text  relating  to  appellate  practice  on  appeals  from 
courts  of  record  (p.  3614),  and  such  decisions  will  not  be  again 
set  forth  in  this  connection. 

17.  An  application  to  compel  a  purchaser  at  a  judicial  sale 
to  take  title  and  that  of  a  purchaser  to  be  relieved  from  his  bid 
are  special  proceedings.  Parish  v.  Parish,  175  N.  Y.  181.  Pro- 
ceedings under  section  915  of  the  Code  to  punish  a  witness  for 
contempt  in  failing  to  give  testimony  for  use  in  an  action  in 
another  state  are  special  proceedings.  Matter  of  Strong,  177 
N.  Y.  400. 

21.  Action  to  recover  royalty  is  action  at  law.  Henderson 
v.  Dougherty,  95  App.  Div.  346,  351,  88  N.  Y.  Supp.  665. 

21,  n.  74.  Schulsinger  v.  Blau,  84  App.  Div.  390,  82  N.  Y. 
Supp.  686. 

21,  n.  75.  Followed  in  Zeiser  v.  Cohn,  44  Misc.  462,  471,  90 
N.  Y.  Supp.  66. 

28,  An  action  by  a  tenant  against  his  landlord  to  recover 
damages  for  failure  to  make  repairs  as  provided  for  by  con- 
tract, whereby  the  tenant  suffered  a  personal  injury,  is  based 
on  contract.  Spero  v.  Levy,  43  Misc.  24,  86  N.  Y.  Supp.  869. 
Where  no  objection  is  made,  and  the  claim  is  treated  by  both 
parties  as  ex  contractu,  an  appellate  court  will  not  interfere. 
La  Grange  v.  Merritt,  96  App.  Div.  61,  89  N.  Y.  Supp.  32.  If 
plaintiff  elects  to  sue  in  tort  he  cannot  recover  in  assumpsit. 
Bermel  v.  Harnischfeger,  97  App.  Div.  402,  89  N.  Y.  Supp.  1029. 

29,  n.  98.     Price  v.  Parker,  44  Misc.  582,  90  N.  Y.  Supp.  98. 

30,  n.  107.  Jones  v.  Leopold,  95  App.  Div.  404,  88  N.  Y. 
Supp.  568.  See,  also,  Wood  v.  E.  &  H.  T.  Anthony  &  Co.,  79 
App.  Div.  Ill,  79  N.  Y.  Supp.  829. 

31,  n.  109.  Such  an  action  is  based  on  contract.  Citizens' 
Nat.  Bank  v.  Wetsel,  96  App.  Div.  85,  88  N.  Y.  Supp.  1079. 

34,  n.  130.  Heasty  v.  Lambert,  98  App.  Div.  177,  90  N.  Y. 
Supp.  595.  The  submission  will  be  dismissed  where  all  neces- 
sary parties  are  not  brought  in.  Schreyer  v.  Arendt,  83  App. 
Div.  335,  82  N.  Y.  Supp.  122.  Where  a  controversy  as  to  the 
person  entitled  to  the  proceeds  of  a  benefit  certificate  in  a  mut- 
ual benefit  society  was  submitted,  and  the  determination  thereof 


APPENDIX.  4045 

depended  on  a  construction  of  important  provisions  of  the  so- 
ciety's charter,  the  society  was  a  necessary  party  to  the  sub- 
mission. Davin  v.  Davin,  105  App.  Div.  580,  94  N.  Y.  Supp. 
281. 

34,  n.  134.  Failure  of  the  proposed  submission  to  contain  an 
agreement  as  to  the  facts  which  are  admitted  is  not  cured  by  the 
fact  that  opposite  the  title  there  is  a  memorandum  to  the  effect 
that  it  is  a  case  agreed  on  in  a  controversy  submitted  without 
action,  pursuant  to  the  Code  of  Civil  Procedure.  Begen  v. 
Curtis,  81  App.  Div.  91,  80  N.  Y.  Supp.  929. 

37.  It  seems  that  there  can  be  no  judgment  by  default  on 
the  failure  of  one  of  the  litigants  to  appear  on  the  trial.  Heasty 
v.  Lambert,  98  App.  Div.  177,  90  N.  Y.  Supp.  595. 

38,  n.  163.  Davin  v.  Davin,  105  App.  Div.  580,  94  N.  Y. 
Supp.  281. 

40,  §  17.  The  former  remedy  to  recover  damages  for  per- 
sonal injuries  resulting  in  death  is  cumulative  with  the  remedy 
provided  for  by  the  Employer's  Liability  Act.  Monigan  v. 
Erie  R.  Co.,  99  App.  Div.  603,  91  N.  Y.  Supp.  657;  Mulligan  v. 
Erie  It.  Co.,  99  App.  Div.  499,  91  N.  Y.  Supp.  60. 

42.  That  action  to  set  aside  assignment  for  benefit  of  cred- 
itors is  not  an  election  to  take  in  hostility  to  the  assignment, 
see  Matter  of  Carver,  176  N.  Y.  386. 

43,  §  24.  An  action  on  contract  on  the  theory  that  the  con- 
tract created  a  partnership  is  inconsistent  with  an  action  on  the 
theory  that  the  same  contract  was  one  of  employment.  Sacker 
v.  Marcus,  43  Misc.  8,  86  N.  Y.  Supp.  83.  There  is  no  election 
of  remedies  where  plaintiff  sets  out  a  cause  of  action  at  com- 
mon law  for  negligence  resulting  in  personal  injuries,  and  af- 
terwards seeks  to  amend  so  as  to  bring  the  case  within  the  Em- 
ployer's Liability  Act.  Mulligan  v.  Erie  R.  Co.,  99  App.  Div. 
499,  91  N.  Y.  Supp.  60 ;  Monigan  v.  Erie  R.  Co.,  99  App.  Div. 
603,  91  N.  Y.  Supp.  657. 

43,  n.  194.  Citizens'  Nat.  Bank  v.  Wetsel,  96  App.  Div.  85, 
88  N.  Y.  Supp.  1079. 

44,  §  25.  The  statement  in  an  affidavit,  in  opposition  to  a 
motion  for  a  change  of  venue,  that  the  action  is  in  tort,  does  not 
constitute  a  binding  election,  where  the  statement  was  merely 


4046  APPENDIX. 

incidental  and  had  no  effect  on  the  decision  of  the  court.     Price 
v.  Parker,  44  Misc.  582,  90  N.  Y.  Supp.  98. 

45,  n.  211.  An  election  of  remedies  is  determined  by  the 
commencement  of  an  action  and  not  by  the  result  of  it.  Matter 
of  Garver,  176  N.  Y.  386,  394. 

46,  §  27.  A  pending  action  is  a  bar  though  the  complaint 
therein  is  demurrable,  where  the  right  to  demur  has  been 
waived.  Romaine  v.  New  York,  N.  H.  &  H.  R.  R.  Co.,  87  App. 
Div.  569,  84  N.  Y.  Supp.  491.  The  pendency  of  another  action 
may  be  established  by  reading  in  evidence  a  copy  of  the  com- 
plaint served  on  the  defendant's  attorney.  Id.  See  Place  v. 
Rogers,  101  App.  Div.  193,  91  N.  Y.  Supp.  912,  where  it  was  held 
proper  to  refuse  to  stay  the  sale  under  an  interlocutory  judg- 
ment in  partition  until  the  final  determination  of  a  pending 
ejectment  action. 

46,  n.  219.  Cassidy  v.  Arnold,  100  App.  Div.  412,  91  N.  Y. 
Supp.  570. 

46,  n.  222.  Hirsh  v.  Manhattan  R.  Co.,  84  App.  Div.  374, 
377,  378,  82  N.  Y.  Supp.  754. 

47,  n.  223.  Hart  v.  Hart,  86  App.  Div.  236,  83  N.  Y.  Supp. 
897. 

47,  n.  226.  Hirsh  v.  Manhattan  R.  Co.,  84  App.  Div.  374,  82 
N.  Y.  Supp.  754. 

50,  n.  247.  Sammons  v.  Parkhurst,  46  Misc.  128,  93  N.  Y. 
Supp.  1063.  An  action  by  the  stockholders  of  a  corporation  on 
behalf  of  themselves  and  all  other  stockholders  against  the  cor- 
poration and  its  directors  for  an  accounting  for  the  fraud  of 
the  directors,  should  not  be  dismissed  because  there  had  been 
commenced  at  the  same  time  a  statutory  action  for  the  same 
relief  by  a  director,  though  the  parties  plaintiff  were  closely 
related  and  their  interests  in  the  subject-matter  were  similar, 
and  though  the  director  who  brought  the  statutory  action  was 
joined  as  a  plaintiff  in  the  stockholders'  action.  Loewenstein 
v.  Diamond  Soda  Water  Mfg.  Co.,  94  App.  Div.  383,  88  N.  Y. 
Supp.  313. 

50,  n.  251.  A  pending  action  is  not  a  bar  where  it  does  not 
necessarily  result  in  a  determination  of  all  the  issues  presented 
by  a  second  action.  Jordan  v.  Underhill,  91  App.  Div.  124,  128, 
86  X.  Y.  Supp.  620. 


APPENDIX.  4047 

51,  n.  256.  Jordan  v.  Underhill,  91  App.  Div.  124,  128,  86  N. 
Y.  Supp.  620;  Jones  v.  Leopold,  95  App.  Div.  404,  88  N.  Y. 
Supp.  568. 

52,  §  41.  Defendant,  by  not  raising  any  question  by  motion 
or  objection  which  indicates  any  reliance  on  the  plea  of  another 
action  pending,  and  by  basing  its  motion  for  a  dismissal  on  a 
distinct  ground  which  did  not  involve  such  question,  is  deemed 
to  have  waived  the  defense,  and  cannot  first  urge  the  plea  in  an 
appellate  court.  Hirsh  v.  Manhattan  R.  Co.,  84  App.  Div.  374, 
82  N.  Y.  Supp.  754. 

54,  §  44.  An  action  to  recover  on  a  quantum  meruit  for  labor 
and  materials  furnished  is  not  barred  by  judgment  in  an  action 
to  foreclose  a  mechanic's  lien  where  it  was  expressly  adjudged 
in  the  first  action  that  there  could  be  no  recovery  for  the  work 
and  materials  because  the  contract  had  not  been  performed  or 
substantially  performed.  Maeder  v.  Wexler,  43  Misc.  16,  87 
N.  Y.  Supp.  400.  Where  the  buyer  repudiates  a  contract  for 
delivery  of  property  in  instalments,  because  of  the  failure  to  de- 
liver an  instalment,  the  buyer  cannot  split  up  his  cause  of  ac- 
tion for  damages  by  suing  at  different  times  for  the  nondelivery 
of  past  instalments  and  remaining  instalments.  Pakas  v.  Hol- 
lingshead,  42  Misc.  287,  86  N.  Y.  Supp.  560. 

54,  n.  274.  Maeder  v.  Wexler,  98  App.  Div.  68,  90  N.  Y. 
Supp.  598. 

55,  §  44.  But  where  part  of  a  demand  has  been  assigned,  a 
recovery  by  the  assignor  of  the  balance  of  the  demand  does  not 
bar  an  action  by  his  assignee  to  recover  the  amount  assigned  to 
him.     Goldshear  v.  Barron,  42  Misc.  198,  85  N.  Y.  Supp.  395. 

58,  n.  300.  Zeiser  v.  Cohn,  44  Misc.  462,  90  N.  Y.  Supp.  66 ; 
Hall  v.  Gilman,  77  App.  Div.  458,  463,  79  N.  Y.  Supp.  303.  A 
complaint  which  charges  a  conspiracy  to  injure  the  plaintiff's 
good  name,  and  which  sets  forth  the  acts  done  by  each  defend- 
ant, states  but  a  single  cause  of  action.  Green  v.  Davies,  83 
App.  Div.  216,  82  N.  Y.  Supp.  54.  Action  by  stockholders  to 
compel  officers  of  corporation  to  account  as  stating  but  one 
cause  of  action,  see  Ward  v.  Smith,  95  App.  Div.  432,  88  N.  Y. 
Supp.  700.  Complaint  held  to  state  but  one  cause  of  action 
against  a  corporation  for  rescission  of  a  subscription.  Mack  v. 
Latta,  83  App.  Div.  242,  252,  82  N.  Y  Supp.  130. 


4048  APPENDIX. 

58,  11.  301.  Definition  followed  in  Rogers  v.  Wheeler,  89  App. 
Div.  435,  85  N.  Y.  Supp.  981,  which  held  that  action  for  ac- 
counting against  individuals  and  representatives  of  an  estate 
involved  but  one  cause  of  action. 

59.  A  complaint  charging  a  conspiracy  and  illegal  combina- 
tion, pursuant  to  which  slanders  were  uttered  and  libels  pub- 
lished, and  plaintiff  was  illegally  arrested  and  maliciously  pros- 
ecuted, states  but  a  single  cause  of  action.  Rourke  v.  Elk  Drug 
Co.,  75  App.  Div.  145,  77  N.  Y.  Supp.  373;  contra,  Green  v. 
Davies,  182  N.  Y.  499,  reversing  on  this  point  100  App.  Div. 
359,  91  N.  Y.  Supp.  470.  In  an  action  by  a  stockholder  of  a 
corporation,  a  complaint  alleging  that  one  of  defendants,  by 
collusion  with  the  directors,  had  fraudulently  acquired  stocks 
belonging  to  the  corporation,  and  seeking  to  obtain  a  cancella- 
tion of  the  contract  under  which  the  securities  were  obtained, 
and  the  delivery  of  them  to  the  corporation,  does  not  state  more 
than  one  cause  of  action.  O'Connor  v.  Virginia  Pass.  &  Power 
Co.,  45  Misc.  228,  92  N.  Y.  Supp.  161. 

59,  n.  302.  See,  also,  Whitingham  v.  Darrin,  45  Misc.  478,. 
92  N.  Y.  Supp.  752. 

59,  n.  309.  Where  the  facts  alleged  show  one  primary  right 
of  the  plaintiff,  and  one  wrong  done  by  the  defendant  which 
violates  that  right,  the  complaint  states  but  a  single  cause  of 
action,  no  matter  how  many  forms  and  kinds  of  relief  the 
plaintiff  may  be  entitled  to.  City  of  N.  Y.  v.  Knickerbocker 
Trust  Co.,  104  App.  Div.  223,  93  N.  Y.  Supp.  937. 

60.  There  is  only  one  cause  of  action  though  several  persons 
sue  a  railroad  company  for  setting  fire  to  a  property  where  the 
plaintiffs  have  all  acquired  an  interest  in  the  property  and 
there  is  only  one  negligent  act.  Jacobs  v.  New  York  Cent.  & 
H.  R.  R.  Co.,  107  App.  Div.  134,  94  N.  Y.  Supp.  954. 

62,  n.  317.  This  case  is  overruled  by  Reilly  v.  Sicilian  As- 
phalt Pav.  Co.,  170  N.  Y.  40,  in  so  far  as  it  holds  that  a  com- 
plaint setting  up  an  injury  to  the  person  and  an  injury  to  prop- 
erty, resulting  from  the  same  tortious  act,  sets  up  but  one  cause 
of  action. 

63.  n.  331.  A  common-law  and  a  statutory  cause  of  action 
for  damages  caused  by  a  false  report  by  an  officer  of  a  corpo- 


APPENDIX.  4049 

ration  may  be  joined,  since  both  are  causes  of  action  for  per- 
sonal injuries.  Hutchinson  v.  Young,  93  App.  Div.  407,  87  N. 
Y.  Supp.  678. 

63,  n.  334.  Green  v.  Davies,  100  App.  Div.  359,  91  N.  Y. 
Supp.  470,  reversed  on  other  grounds  in  182  N.  Y.  499. 

64,  n.  344.  Causes  of  action  against  several  members  of  the 
board  of  supervisors  to  recover  claims  illegally  audited  by  the 
board  may  be  joined  in  a  taxpayer's  action,  since  both  are  for 
injuries  to  personal  property.  Wallace  v.  Jones,  182  N.  Y.  37, 
which  reverses  92  App.  Div.  613,  86  N.  Y.  Supp.  1149. 

64,  subd.  3.  An  action  for  slander  may  be  maintained 
against  several  persons.     Green  v.  Davies,  182  N.  Y.  499. 

66.  A  cause  of  action  for  the  wrong  done  in  putting  on  the 
market  for  sale  a  gun  constructed  of  such  defective  material 
and  so  carelessly  that  it  was  unsafe  for  use  and  a  danger  to  the 
community  cannot  be  joined  with  a  cause  of  action  for  breach 
of  warranty  owing  to  the  explosion  of  a  gun  sold  to  plaintiff. 
Reed  v.  Livermore,  101  App.  Div.  254,  91  N.  Y.  Supp.  986. 

68.  Joinder  of  causes  of  action  in  a  complaint  in  an  action 
for  the  reformation  of  an  agreement  and  for  an  accounting, 
against  an  individual  and  a  corporation,  held  proper  on  the 
ground  that  the  causes  of  action  arose  out  of  the  same  trans- 
action.   Woolf  v.  Barnes,  46  Misc.  169,  93  N.  Y.  Supp.  219. 

68,  n.  361.  See,  also,  Rogers  v.  Wheeler,  89  App.  Div.  435, 
85  X.  Y.  Supp.  981. 

68,  n.  363.  Causes  of  action  for  injuries  to  person  and  to 
property  from  a  single  negligent  act  may  be  joined.'  Mclnerney 
v.  Main,  82  App.  Div.  543,  81  N.  Y.  Supp.  539. 

69.  A  cause  of  action  for  unlawfully  taking  from  plaintiff's 
possession  a  pair  of  horses  and  a  buggy  and  converting  them  to 
defendant's  own  use  cannot  be  joined  with  a  cause  of  action 
for  a  subsequent  assault  and  battery  on  plaintiff  while  he  was 
engaged  in  an  endeavor  to  regain  possession  thereof.  Camp- 
bell v.  Hallihan,  45  Misc.  325,  90  N.  Y.  Supp.  432.  In  a  tax- 
payer's suit  to  recover  from  the  board  of  supervisors  the 
amount  of  certain  bills  claimed  to  have  been  illegally  and  col- 
hisively  audited  by  them,  causes  of  action  relating  to  separate 
bills  audited  on  different  days  are  properly  joined  where  the 

N.  Y.  Prac—  254. 


4050  APPENDIX. 

auditing  of  all  of  them  is  part  of  the  same  scheme.    Wallace  v. 
Jones,  182  N.  Y.  37. 

71,  n.  377.  Mclnerney  v.  Main,  82  App.  Div.  543,  547,  81 
N.  Y.  Supp.  539,  per  Hirschberg,  J. 

71,  n.  378.  A  cause  of  action  under  section  31  of  the  Stock 
Corporation  Law  to  recover  damages  for  acts  done  in  reliance 
on  a  false  report  of  an  officer  of  a  corporation  is  not  inconsistent 
with  a  common-law  cause  of  action  based  on  the  same  facts  and 
ashing  for  identical  relief.  Hutchinson  v.  Young,  93  App.  Div. 
407,  87  N.  Y.  Supp.  678.  Cause  of  action  for  breach  of  contract 
is  inconsistent  with  cause  of  action  for  rescission  of  the  same 
contract  on  the  ground  of  fraud.  Lomb  v.  Richard,  45  Misc. 
129,  91  N.  Y.  Supp.  881.    See,  also,  vol.  1,  p.  1085. 

72,  n.  387.  Case  v.  New  York  Mut.  Sav.  &  Loan  Ass'n,  88 
App.  Div.  538,  85  N.  Y.  Supp.  104;  Warner  v.  James,  88  App. 
Div.  567,  85  N.  Y.  Supp.  153.  Where  a  certain  amount  of  a 
life  insurance  policy  is  payable  to  the  widow  and  a  certain 
other  part  is  payable  to  the  eldest  child,  the  two  cannot  join  as 
plaintiffs  in  an  action  against  the  company.  Conard  v.  South- 
ern Tier  Masonic  Relief  Ass'n,  104  App.  Div.  611,  93  N.  Y.  Supp. 
626. 

73,  n.  388.  Rogers  v.  Wheeler,  89  App.  Div.  435,  442,  85  N. 
Y.  Supp.  981 ;  Hall  v.  Gilman,  77  App.  Div.  458,  463,  79  N.  Y. 
Supp.  303.  Where  the  negligent  acts  of  two  or  more  persons 
contribute  to  the  infliction  of  personal  injuries  on  another, 
they  may  sue  together  in  one  action  as  joint  tort  feasors.  Lynch 
-v.  Elektron'Mfg.  Co.,  94  App.  Div.  408,  88  N.  Y.  Supp.  70. 

74,  A  riparian  proprietor  may  sue,  in  one  action,  all  the 
;upper  riparian  owners  who  contribute  to  the  deposit  of  refuse 
and  filth  in  the  stream,  though  they  act  independently  of  each 
other.  Warren  v.  Parkhurst,  105  App.  Div.  239,  93  N.  Y.  Supp. 
1009. 

74,  n.  394.  See,  also,  Groh  v.  Flammer,  100  App.  Div.  305, 
91  N.  Y.  Supp.  423. 

75,  n.  402.  A  cause  of  action  by  a  stockholder  against  the 
president  of  the  corporation  for  breach  of  contract,  by  which 
plaintiff  was  to  hold  the  office  of  president,  cannot  be  joined 
with  a  cause  of  action  for  wrongful  appropriation  of  corporate 


APPENDIX.  4051 

funds..    Stoddard  v.  Bell  &  Co.,  100  App.  Div.  389,  91  N.  Y. 
Supp.  477. 

75,  n.  403.  Rogers  v.  Wheeler,  89  App.  Div.  435,  85  N.  Y. 
Supp.  981. 

82,  n.  16.  Friedman  v.  Phillips,  84  App.  Div.  179,  82  N.  Y. 
Supp.  96 ;  Turner  v.  Cedar,  91  N.  Y.  Supp.  758. 

83,  §  72.  Demand  on  third  persons,  to  support  replevin,  is 
insufficient  where  they  have  neither  the  custody  nor  control 
of  the  property.  Heinrich  v.  Van  Wrinckler,  80  App.  Div.  250, 
80  N.  Y.  Supp.  226.  If  a  creditor  notifies  his  debtor  that  he 
will  appear  for  payment  on  a  certain  day,  and  the  creditor  calls 
on  that  day  for  the  sole  purpose  of  receiving  his  due,  and  this 
is  known  to  the  debtor,  there  is  a  sufficient  demand.  Schlim- 
bach  v.  McLean,  83  App.  Div.  157,  82  N.  Y.  Supp.  516. 

84,  n.  31.  That  a  substantial  compliance  with  the  statute  is 
sufficient,  see  Williams  v.  Village  of  Port  Chester,  97  App.  Div. 
85,  89  N.  Y.  Supp.  671. 

84,  n.  33.  Many  cases  have  been  decided  under  this  statute 
since  its  enactment.  It  is  now  well  settled  that  notice  is  not  a 
condition  precedent  where  the  complaint  does  not  charge  any 
liability  based  on  the  provisions  of  the  statute.  Schermerhorn 
v.  Glens  Falls  Portland  Cement  Co.,  94  App.  Div.  600,  88  N.  Y. 
Supp.  407;  Gmaehle  v.  Rosenberg,  178  N.  Y.  147;  Rosin  v. 
Lidgerwood  Mfg.  Co.,  89  App.  Div.  245,  S6  N.  Y.  Supp.  49.  But 
where  the  action  is  statutory,  the  giving  of  the  notice  is  a  con- 
dition precedent  to  the  bringing  of  the  action.  Grasso  v.  Hol- 
brook,  Cabot  &  Daly  Contracting  Co.,  102  App.  Div.  49,  92  N. 
Y.  Supp.  101.  A  typewritten  notice  is  sufficient.  Hunt  v.  Dex- 
ter Sulphite  Pulp  &  Paper  Co.,  100  App.  Div.  119,  91  N.  Y.  Supp. 
279.  Service  of  the  notice  after  sixty  days  after  the  appoint- 
ment of  the  administratrix,  though  within  one  hundred  and 
twenty  days  after  the  accident,  is  held  sufficient  in  Hoehn  v. 
Lautz,  94  App.  Div.  14,  87  N.  Y.  Supp.  921,  but  the  contrary  is 
held  in  Randall  v.  Holbrook,  Cabot  &  Daly  Contracting  Co.,  95 
App.  Div.  336,  88  N.  Y.  Supp.  681.  Necessity  of  pleading  serv- 
ice of  notice,  see  Gmaehle  v.  Rosenberg,  80  App.  Div.  541,  80 
N.  Y.  Supp.  705;  87  App.  Div.  631,  84  N.  Y.  Supp.  1127,  re- 
versed in  178  X.  Y.  147;  Williams  v.  Roblin,  94  App.  Div.  177, 
87  N.  W.  Supp.  1006. 


4052  APPENDIX. 

85,  §  77.  The  general  rule,  in  the  absence  of  statute,  is  that 
an  actios  can  be  brought  on  a  bond,  by  one  not  named  as  obligee 
therein,  only  by  leave  of  court.  Alexander  v.  Union  Surety  & 
Guaranty  Co.,  89  App.  Div.  3,  85  N.  Y.  Supp.  282. 

87,  n.  45.  Who  are  "public  officers,"  see  Code  Civ.  Proc. 
§  1890.  It  is  doubtful  whether  the  trustee  of  a  bankrupt's  es- 
tate is  a  "public  officer."  Alexander  v.  Union  Surety  &  Guar- 
anty Co.,  89  App.  Div.  3,  85  N.  Y.  Supp.  282. 

88.  Guardian  ad  litem  cannot  be  appointed  to  sue  in  behalf 
of  an  incompetent,  but  action  must  be  brought  by  his  committee. 
Rankert  v.  Rankert,  105  App.  Div.  37,  93  N.  Y.  Supp.  399. 

88,  n.  51.  But  suing  without  leave  does  not  affect  the  juris- 
diction of  the  court.  Pruyn  v.  Black,  105  App.  Div.  302,  93  N. 
Y.  Supp.  995. 

89.  An  infant,  prior  to  the  appointment  of  a  committee  for 
him  as  an  insane  person,  may  sue  by  guardian  ad  litem.  Cal- 
lahan v.  New  York  Cent.  &  H.  R.  R.  Co.,  99  App.  Div.  56,  90  N. 
Y.  Supp.  657.  Where,  after  a  guardian  ad  litem  has  been  ap- 
pointed for  an  infant,  he  is  afterwards  adjudged  insane  and  a 
committee  appointed,  such  committee  may  be  substituted  as 
plaintiff  in  place  of  the  infant,  by  his  guardian ;  and  it  is  not 
necessary  to  provide  that  the  appointment  of  the  committee 
for  the  purposes  of  the  action  be  made  nunc  pro  tunc  as  of  the 
time  of  the  commencement  of  this  action,  or  allow  the  plaintiff 
generally  to  amend  his  complaint.    Id. 

89,  n.  63.  The  guardian  must  be  appointed  by  the  court  in 
which  the  action  has  been  or  is  to  be  brought,  and  with  refer- 
ence to  the  particular  litigation.  The  supreme  court  cannot 
appoint  a  guardian  ad  litem  for  an  infant  plaintiff  in  the  city 
court  of  New  York.    Goodfriend  v.  Robins,  92  N.  Y.  Supp.  240. 

90.  Proper  practice  requires  a  verification  of  the  petition 
though  there  is  no  statutory  necessity.  Baumeister  v.  Demuth, 
84  App.  Div.  394,  398,  82  N.  Y.  Supp.  831.  Defects  in  the  peti- 
tion are  amendable  nunc  pro  tunc.     Id. 

93,  n.  92.     Goodfriend  v.  Robins,  92  N.  Y.  Supp.  240. 

102,  n.  17.  Section  1351  of  the  Greater  New  York  Charter 
expressly  provides  that  the  municipal  court  created  thereby  to 
take  the  place  of  the  district  courts  of  New  York  city  and  the 
justices'  courts  of  Brooklyn  "shall  not  be  a  court  of  record." 


APPENDIX.  4053 

104.  Construction  of  New  Mexico  Code  making  Sunday  the 
time  between  sunrise  and  sunset,  and  forbidding  service  of  pro- 
cess on  Sunday,  see  Harrison  v.  "Wallis,  44  Misc.  492,  498,  90 
N.  Y.  Supp.  44. 

108,  n.  56.  Smith  v.  Warringer,  41  Misc.  94,  83  N.  Y.  Supp. 
655. 

113,  n.  75.  The  Code  requires  written  consent.  Oral  con- 
sent in  open  court  is  insufficient.  Armstrong  v.  Loveland,  99 
App.  Div.  28,  90  N.  Y.  Supp.  711. 

114.  A  judicial  opinion  is  binding  only  so  far  as  it  is  rele- 
vant and  when  it  wanders  from  the  point  at  issue  it  no  longer 
has  force  as  an  official  utterance.  Crane  v.  Bennett,  177  N.  Y. 
106,  112,  and  cases  cited. 

114,  n.  85.  Obiter  dicta  will  not  control  subsequent  decisions. 
People  ex  rel.  McLaughlin  v.  Police  Com'rs  of  Yonkers,  174 
X.  Y.  450,  466. 

115,  n.  90.  So  held  though  a  determination  of  the  question 
decided  was  not  necessary.  Ryan  v.  City  of  N.  Y.,  78  App. 
Div.  134,  79  N.  Y.  Supp.  599. 

123,  n.  135.  That  consent  before  an  action  or  proceeding  is 
commenced  is  not  a  waiver,  see  Matter  of  Graham,  39  Misc. 
226,  79  X.  Y.  Supp.  573. 

126.  A  state  court  is  without  jurisdiction  to  enjoin  proceed- 
ings before  a  federal  court  in  another  state.  Johnstown  Min. 
Co.  v.  Morse,  44  Misc.  504,  90  X.  Y.  Supp.  107. 

128.  A  court  of  equity  may  enjoin  a  party  to  an  action  pend- 
ing in  this  state  from  prosecuting  an  action  subsequently  com- 
menced in  another  state.  Locomobile  Co.  of  America  v.  Amer- 
ican Bridge  Co.,  80  App.  Div.  44,  80  X.  Y.  Supp.  288. 

128,  n.  161.  The  court  may  direct  a  sale  of  the  part  of  the 
mortgaged  land  lying  outside  the  state  and  a  conveyance  there- 
of to  the  purchaser.  Mead  v.  Brockner,  82  App.  Div.  480,  81  X. 
Y.  Supp.  594. 

128,  n.  164.  Pruyn  v.  Black,  105  App.  Div.  302,  93  X.  Y. 
Supp.  995. 

131,  n.  172.     Crashley  v.  Press  Pub.  Co.,  179  N.  Y.  27,  32. 

131,  n.  173.  Collard  v.  Beach,  81  App.  Div.  582,  81  X.  Y. 
Supp.  619.    It  is  immaterial  that  the  objection  to  the  jurisdic- 


4054  APPENDIX. 

tion  was  not  taken  on  the  first  trial  of  the  action  or  that  the 
courts  of  the  state  where  the  cause  of  action  arose  will  accept 
jurisdiction  of  like  actions  arising  in  the  state  of  New  York. 
Collard  v.  Beach,  93  App.  Div.  339,  87  N.  Y.  Supp.  884. 

135,  n.  191.  Lewis  v.  Guardian  F.  &  L.  Assur.  Co.,  93  App. 
Div.  157,  163,  87  N.  Y.  Supp.  525.  This  section  of  the  Code  is 
not  in  violation  of  the  federal  constitution  in  so  far  as  it  re- 
quires full  faith  and  credit  to  be  given  to  the  judgment  of  a 
sister  state  nor  as  relating  to  equal  privileges  and  immunities 
given  to  the  citizens  of  one  state  in  another  state.  Anglo-Amer- 
ican Provision  Co.  v.  Davis  Provision  Co.,  169  N.  Y.  506,  af- 
firmed in  191  U.  S.  373.  Actions  between  nonresidents  and  for- 
eign corporations  may  be  maintained  in  this  state,  under  sec- 
tion 1780  of  the  Code  of  Civil  Procedure,  if  the  breach  of  the 
contract  occurred  within  this  state,  no  matter  where  the  con- 
tract was  made.  Toronto  General  Trust  Co.  v.  Chicago,  B.  &  Q. 
R.  Co.,  32  Hun,  192;  Perry  v.  Erie  Transfer  Co.,  19  N.  Y.  Supp. 
239,  28  Abb.  N.  C.  430,  and  note;  Hilleary  v.  Skookum  Root 
Hair  Grower  Co.,  4  Misc.  127,  131,  23  N.  Y.  Supp.  1016 ;  Gund- 
lin  v.  Hamburg-American  Packet  Co.,  8  Misc.  291,  295,  28  N. 
Y.  Supp.  572 ;  Delaware,  L.  &  W.  R.  Co.  v.  New  York,  S.  &  W. 
R,  Co.,  12  Misc.  230,  33  N.  Y.  Supp.  1081 ;  Shelby  Steel  Tube 
Co.  v.  Burgess  Gun  Co.,  8  App.  Div.  444,  40  N.  Y.  Supp.  871 ; 
Rosenblatt  v.  Jersey  Novelty  Co.,  45  Misc.  59,  90  N.  Y.  Supp. 
816.  The  courts  of  this  state  have  jurisdiction  of  an  action  by 
resident  stockholders  of  a  foreign  corporation  against  another 
foreign  corporation  to  have  declared  void  for  fraud  an  agree- 
ment canceling  a  lease  from  defendant  to  the  corporation  of 
Avhich  plaintiffs  are  members.  Jacobs  v.  Mexican  Sugar  Re- 
fining Co.,  104  App.  Div.  242,  93  N.  Y.  Supp.  776.  When  a 
judgment  against  a  foreign  corporation  would  not  be  effectual 
without  the  aid  of  the  courts  of  a  foreign  country  or  of  a  sister 
state,  and  it  may  contravene  the  public  policy  of  the  foreign 
country  or  rest  on  the  construction  of  a  foreign  statute,  the 
interpretation  of  which  is  not  free  from  doubt,  the  court  should 
decline  to  assume  jurisdiction.  Hallenborg  v.  Greene,  66  App. 
Div.  590,  73  N.  Y.  Supp.  403,  followed  in  Jacobs  v.  Mexican 
Sugar  Refining  Co.,  44  Misc.  409,  89  N.  Y.  Supp.  1000.     Objec- 


APPENDIX.  4055 

tion  cannot  be  urged  by  demurrer  unless  want  of  jurisdiction 
appears  on  the  face  of  the  complaint.  MacGinniss  v.  Amalga- 
mated Copper  Co.,  45  Misc.  106,  91  N.  Y.  Supp.  591. 

135,  §  137.  Johnston  v.  Mutual  Reserve  Life  Ins.  Co.,  43 
Misc.  251,  87  N.  Y.  Supp.  438.  The  county  court  is  one  of  lim- 
ited jurisdiction  the  existence  of  which  will  not  be  presumed. 
Matter  of  Baker,  173  N.  Y.  249,  252. 

136,  n.  196.  Even  though  the  rule  that  the  jurisdiction  of  an 
inferior  court  is  never  presumed  applies  only  to  the  subject- 
matter,  and  in  other  respects  the  rule  as  to  courts  of  general 
jurisdiction  obtains,  it  cannot  avail  a  plaintiff  suing  on  a  judg- 
ment recovered  in  an  inferior  court  on  an  insufficient  affidavit 
of  service,  since  the  presumption  in  support  of  superior  courts 
of  general  jurisdiction  only  applies  to  jurisdictional  facts  as 
to  which  the  record  is  silent.  Frees  v.  Blyth,  99  App.  Div. 
541,  91  N.  Y.  Supp.  103. 

140,  n.  220.  While  a  state  court  has  no  jurisdiction  of  an 
action  to  recover  on  a  marine  contract  for  salvage,  it  has  of  an 
action  to  recover  for  services  rendered  to  a  stranded  barge 
under  a  contract.  Merritt  &  Chapman  D.  &  W.  Co.  v.  Tice,  77 
App.  Div.  326,  79  N.  Y.  Supp.  120. 

141,  n.  231.  Griffith  v.  Dodgson,  103  App.  Div.  542,  93  N.  W. 
Supp.  155. 

142,  n.  241.  The  state  courts  have  jurisdiction  of  an  action 
merely  involving  the  question  whether  a  combination  entered 
into  by  defendants  to  control  the  sale  of  copyrighted  books  is 
illegal,  as  in  restraint  of  trade,  though  it  may  be  necessary  to 
construe  the  rights  of  parties  under  the  copyright  law.  Straus 
v.  American  Publishers'  Ass'n,  45  Misc.  251,  92  N.  Y.  Supp.  153. 

142,  §  145.  See,  also,  Bloch  v.  Bloch,  42  Misc.  278,  86  N.  Y. 
Supp.  1047.  The  state  courts  have  concurrent  jurisdiction  with 
the  federal  courts  of  an  action  to  recover  the  property  trans- 
ferred by  a  bankrupt  to  a  creditor  as  a  preference,  or  the  value 
of  such  property.  Stern  v.  Mayer,  99  App.  Div.  427,  91  N.  Y. 
Supp.  292.  A  decision  by  a  federal  court  in  bankruptcy  pro- 
ceedings, where  the  jurisdiction  in  regard  to  the  matter  decided 
is  concurrent,  will  be  followed  by  the  state  court.  Johnson  v. 
Woodend,  44  Misc.  524,  90  N.  Y.  Supp.  43. 


4056  APPENDIX. 

,  143,  n.  252.  An  action  lies  to  recover  damages  for  death 
caused  by  Wrongfu]  act  in  navy  yard.  McCarthy  v.  R.  G.  Pack- 
ard Co.,  105  App.  Div.  436,  94  N.  Y.  Supp.  203. 

157.  There  is  but  one  supreme  court  in  this  state.  It  fol- 
lows that  there  is  no  want  of  jurisdiction  where  an  action  is 
brought  in  the  supreme  court  of  one  county  though  the  parties 
have  expressly  agreed  that  the  action  should  be  brought  in  an- 
other county.  Benson  v.  Eastern  Bldg.  &  Loan  Ass'n,  174  N. 
Y.  83. 

158,  n.  295.  An  action  in  equity  to  remove  trustees  may  be 
maintained  in  the  supreme  court  though  like  proceedings  are 
pending  and  afterwards  instituted  in  the  surrogate's  court. 
Westerfield  v.  Rogers,  174  N.  Y.  230,  240. 

162,  n.  322.  This  Code  section  is  amended  by  Laws  1904, 
c.  500,  by  authorizing  a  trial  term  in  any  county  to  be  held  in 
two  or  more  parts,  reserving  one  or  more  parts  "for  the  trial 
of  actions  on  sales  of  personal  property,  including  agreements 
incident  to  such  sales,  for  work,  labor  and  services,  and  ma- 
terial furnished,  upon  policies  of  insurance  and  upon  negotia- 
ble paper  and  other  instruments  transferable  by  endorsement 
or  order." 

183,  Want  of  jurisdiction  because  of  defendant's  nonresi- 
dence  cannot  be  waived  nor  can  jurisdiction  be  obtained  by  con- 
sent of  the  parties.  Perlman  v.  Gunn,  41  Misc.  166.  83  N.  Y. 
Supp.  986. 

184,  n.  411.  The  official  citation  is  Howard  Iron  Works  v. 
Buffalo  Elevating  Co.,  176  N.  Y.  1. 

185,  n.  421.  Residence  of  surety  company  which  gives  bonds, 
see  Perlman  v.  Gunn,  41  Misc.  166,  83  N.  Y.  Supp.  986. 

191,  n.  467.  While  this  Code  provision  authorizes  an  ex  parte 
order  by  a  justice  of  the  supreme  court  extending  the  time  to 
answer  in  an  action  brought  in  the  county  court,  it  does  not 
authorize  a  modification  of  such  order  at  the  special  term  of  the 
supreme  court.  Edwards  v.  Shreve,  83  App.  Div.  165,  82  N.  Y. 
Supp.  514. 

207,  n.  546.  The  court  has  no  jurisdiction  of  an  action  by  a 
trustee  in  bankruptcy  to  recover  a  preference.  Dyer  v.  Krat- 
zenstein,  103  App.  Div.  404,  92  N.  Y.  Supp.  1012. 


APPENDIX.  4057 

213,  n.  582.  Surrogate's  court  possesses  only  such  jurisdic- 
tion as  is  conferred  on  it  by  statute.  Baldwin  v.  Rice.  44  Misc. 
€4,  71,  89  N.  Y.  Supp.  743. 

225,  §  241.  A  justice  of  the  supreme  court  who  is  temporarily 
designated  to  serve  on  the  appellate  division  before  he  has  de- 
cided a  case  tried  before  him  at  special  term  may  decide  such 
case  after  the  temporary  designation  is  revoked.  Irving  Nat. 
Bank  v.  Moynihan,  78  App.  Div.  141,  79  N.  Y.  Supp.  528. 

226,  n.  623.  This  Code  provision  does  not  refer  exclusively 
to  county  officers.  It  includes  a  justice  of  the  supreme  court. 
Matter  of  Town  of  Hadley,  44  Misc.  265,  89  N.  Y.  Supp.  910. 

228,  n.  631.  This  does  not  prevent  a  judge  from  hearing  and 
determining  an  action  relating  to  a  judgment  procured  in  an 
action  where  the  judge  acted  as  attorney,  where  the  second  ac- 
tion was  not  brought  until  several  years  afterwards  and  then 
by  other  attorneys,  and  the  relation  of  attorney  and  client  ex- 
isting in  the  first  case  had  been  terminated  on  the  rendition  of 
judgment  therein.  Keeffe  v.  Third  Nat.  Bank,  177  N.  Y.  305. 
The  words  "cause  or  matter,"  used  in  this  Code  provision  refer 
only  to  actions  or  special  proceedings  in  which  a  judge  might 
sit  or  take  part,  the  word  "cause"  meaning  a  cause  of  action 
and  the  word  "matter"  referring  to  a  special  proceeding.  Id. 
This  Code  provision  applies  to  criminal  as  well  as  to  civil  trials, 
and  it  is  held  in  a  criminal  case  that  where  a  judge  had  acted 
as  attorney  for  an  alleged  accomplice  of  the  defendant,  and,  as 
such,  had  consulted  with  the  defendant  about  the  indictments 
pending  against  him,  he  is  disqualified  though  the  formal  rela- 
tion of  lawyer  and  client  never  existed  between  the  judge  and 
the  defendant.  People  v.  Haas,  105  App.  Div.  119,  93  N.  Y. 
Supp.  790. 

230,  n.  642.  The  phrase  "cause  or  matter,"  as  used  in  this 
Code  provision,  means  the  particular  action  or  special  proceed- 
ing to  be  tried.    Keeffe  v.  Third  Nat.  Bank,  177  N.  Y.  305. 

239,  mi.  703,  704.  Matter  of  Munson,  95  App.  Div.  23.  88  N. 
Y.  Supp.  509.  The  body  of  the  order  may  be  looked  into  to 
see  whether  it  was  made  by  a  court  or  by  a  judge,  Id.  See, 
also,  Edwards  v.  Shreve,  83  App.  Div.  165,  82  N.  Y.  Supp.  514. 
See,  also,  vol.  1,  p.  619. 


405S  APPENDIX. 

240,  n.  70S.  A  stipulation,  on  settlement  of  the  cause  of  ac- 
tion, for  discontinuance,  signed  by  plaintiff  personally,  can  only 
be  made  effectual  by  an  application  to  the  court  on  notice  to 
his  attorney.  Kuehn  v.  Syracuse  Rapid  Transit  R.  Co.,  104 
App.  Div.  580,  93  N.  Y.  Supp.  883. 

246,  n.  741.  Person  who  omits  to  file  certificate  cannot  prac- 
tice or  hold  himself  out  as  a  lawyer.  Thompson  v.  Stiles,  44 
Misc.  334,  89  N.  Y.  Supp.  876. 

249.  An  attorney  issuing  a  writ  of  attachment  is  liable  to 
the  sheriff  for  poundage  fees.  Gadski-Tauscher  v.  Graff,  44 
Misc.  418,  89  N.  Y.  Supp.  1019. 

249.  Where  an  attorney  recovers  a  judgment  for  his  client, 
and  which  was  paid  by  the  unsuccessful  party  to  the  attorney 
pending  an  appeal,  upon  the  reversal  of  the  judgment,  the  at- 
torney's client,  who  had  received  the  benefit  of  the  payment 
by  being  credited  upon  a  bill  rendered  to  him  by  the  attorney, 
must  restore  or  account  for  the  money,  although  the  client  and 
the  attorney  had  settled  upon  the  basis  that  the  attorney  had 
received  the  amount  of  the  judgment,  and  credited  it  to  his 
client  in  the  bill  rendered,  and  upon  which  the  settlement  was 
made.     Royal  Baking  Powder  Co.  v.  Hoagland,  180  N.  Y.  35. 

249,  n.  767.  In  order  to  recover  from  an  attorney,  costs  paid 
to  him,  the  plaintiff  must  show  not  only  that  costs  in  excess  of 
legal  costs  were  received  by  the  attorney,  but  also  that  he  had 
them  in  his  possession  after  the  making  of  the  order  which  re- 
duced the  amount  of  the  costs.  If,  before  the  making  of  such  or- 
der, the  attorney  paid  out  the  costs  on  the  account  of  his  client, 
or  appropriated  them  to  pay  himself  for  disbursements  made 
by  himself  for  his  client,  he  cannot  be  required  to  restore  them. 
The  action  should  be  against  the  client,  and  not  against  the  at- 
torney. Of  course,  if  the  attorney  obtained  payment  of  the 
costs  by  deceit,  he  could  be  required  to  restore  them,  irre- 
spective of  how  he  had  disposed  of  them.  Rickert  v.  Pollock, 
46  Misc.  275,  92  N.  Y.  Supp.  89. 

250,  n.  772.  The  court  has  jurisdiction  to  disbar  an  attorney 
for  misconduct  committed  outside  of  the  state  and  in  the  United 
States  court,  and  with  respect  to  the  process  of  that  court. 
Disbarment  is  proper  where  the  attorney  is  guilty  of  perjury 


APPENDIX.  4059 

and  subornation  of  perjury  in  verifying  a  complaint  in  an  ac- 
tion.    In  re  Lamb,  105  App.  Div.  462,  94  N.  Y.  Supp.  331. 

251.  A  surrogate  who  practices  as  an  attorney  in  violation 
of  the  Constitution  cannot  be  disbarred.  Matter  of  Silkman, 
88  App.  Div.  102,  84  N.  Y.  Supp.  1025. 

253,  n.  805.  Matter  of  Brooklyn  Bar  Ass'n,  92  App.  Div. 
612,  86  N.  Y.  Supp.  1130. 

255,  n.  818.  To  create  the  relation  there  need  be  no  formal 
written  instrument.  Carlisle  v.  Barnes,  102  App.  Div.  573,  92 
N.  Y.  Supp.  917.  To  establish  this  relation  of  attorney  and 
client,  it  is  not  necessary  that  the  attorney  should  have  ap- 
peared as  attorney  in  legal  proceedings.  Where  it  appears  that 
an  attorney  is  consulted  to  extricate  a  person  from  his  difficul- 
ties, and  that  the  relation  commenced  because  of  the  position 
held  by  the  attorney,  and  the  attorney  undertakes  to  act  for 
the  person  consulting  him,  the  relation  of  attorney  and  client 
exists.    Sheehan  v.  Erbe,  103  App.  Div.  7,  92  N.  Y.  Supp.  862. 

255,  n.  819.  A  contract  of  retainer,  drawn  by  the  attorney, 
should  be  strictly  construed  against  him.  Mcllvaine  v.  Steinson, 
90  App.  Div.  77,  85  N.  Y.  Supp.  889. 

256,  n.  823.  To  bind  a  client  with  the  knowledge  of  his  at- 
torney as  to  the  existence  of  an  incumbrance,  which  knoAvledge 
the  attorney  had  acquired  in  some  other  transaction,  not  relat- 
ing to  the  business  of  his  client,  the  burden  is  on  the  person 
claiming  such  notice  to  show  that  knowledge  of  the  instrument 
was  present  in  the  mind  of  the  attorney  at  the  time  he  acted 
for  his  client.  Mathews  v.  Damainville,  100  App.  Div.  311,  91 
N.  Y.  Supp.  524. 

257,  n.  835.  Sheehan  v.  Erbe,  103  App.  Div.  7,  92  N.  Y.  Supp. 
862 ;  Kissam  v.  Squires,  102  App.  Div.  536,  92  N.  Y.  Supp.  873 ; 
Bingham  v.  Sheldon,  101  App.  Div.  48,  91  N.  Y.  Supp.  917. 
So  held  where  action  was  by  assignee  of  attorney.  Goldberg 
v.  Goldstein,  87  App.  Div.  516,  84  N.  Y.  Supp.  782.  The  rule 
should  not  be  rigorously  applied  where,  owing  to  the  death  of 
the  attorney,  it  is  impossible  for  his  representatives  to  make 
"full  or  plenary  proof."  Boyd  v.  Daily,  85  App.  Div.  581,  587, 
83  N.  Y.  Supp.  539.  Where  an  attorney  for  an  estate  also  acts 
as  attorney  for  the  purchasers  of  a  judgment  against  the  estate, 


4060  APPENDIX. 

and  the  judgment  was  purchased  at  a  discount  though  consid- 
ered enforcible  at  its  face,  the  administrators  of  the  estate  are 
entitled  to  have  it  satisfied  by  payment  of  the  amount  paid  for 
it  with  interest.  Hare  v.  De  Young,  39  Misc.  366,  79  N.  Y.  Stipp. 
868.  The  exception  as  laid  down  in  Clifford  v.  Braun  is  fol- 
lowed in  Boyd  v.  Daily,  85  App.  Div.  581,  586,  83  N.  Y.  Supp. 
539. 

257,  §  306.  In  an  action  by  a  client  against  his  attorney  for 
a  violation  of  duty  in  settling  a  claim  for  some  $800  for  $250, 
without  authority,  it  is  error  to  instruct  that  "when  negligence 
has  been  proved,  if  you  find  there  was  any  in  consequence  of 
which  a  client  has  lost  his  case,  it  is  not  incumbent  on  the  client 
to  show  that  but  for  the  negligence,  he  would  have  succeeded  in 
the  action,"  where  plaintiff  neither  alleged  nor  proved  the 
value  of  the  claim  nor  that  it  could  have  been  collected  in  ex- 
cess of  the  sum  received  by  the  attorney.  Vooth  v.  McEachen, 
181  N.  Y.  28,  reversing  91  App.  Div.  30,  86  N.  Y.  Supp.  431. 
In  an  action  against  an  attorney  for  negligence  in  loaning 
plaintiff's  money,  the  burden  is  not  on  the  attorney  to  establish 
that  the  transaction  was  fair  and  honest,  since  such  rule  ap- 
plies only  where  the  attorney  obtains  some  property  or  property 
rights  from  his  client.  Schreiber  v.  Heath,  103  App.  Div.  364, 
92  N.  Y.  Supp.  1043.  An  attorney  who  fails  to  exercise  the  skill 
ordinarily  possessed  by  persons  with  common  capacity  engaged 
in  the  same  business  in  loaning  money  on  property  is  liable  to 
his  client  for  the  amount  of  the  loss  sustained  by  his  negligence. 
Kissam  v.  Squires,  102  App.  Div.  536,  92  N.  Y.  Supp.  873. 

258,  §  307.  Death  of  attorney,  before  rendition  of  all  the 
services,  where  contract  is  not  entire,  does  not  preclude  a  re- 
covery for  services  previously  rendered  and  for  which  compen- 
sation had  become  due  and  payable  at  the  rate  stipulated. 
Boyd  v.  Daily,  85  App.  Div.  581,  587,  83  N.  Y.  Supp.  539.  On 
a  motion  to  require  an  attorney  to  prosecute  an  action,  an  order 
of  reference  to  determine  the  amount  to  which  the  attorney  is 
entitled  as  fees  should  not  be  made,  since  such  matter  is  prop- 
erly the  subject  of  a  separate  motion.  Luikert  v.  Luikert,  102 
App.  Div.  53,  92  N.  Y.  Supp.  97. 

258,  n.  840.     A  petition,  under  section  66  of  the  Code,  by  a 


APPENDIX.  4061 

client,  to  fix  the  fees  of  her  attorney,  does  not  lie  where  there 
is  a  contract  agreement  therefor.  So  held  where  judgment  was 
recovered  under  an  agreement  that  the  attorney  should  have 
fifty  per  cent,  and  thereafter  the  judgment  debtor  becomes  in- 
solvent and  the  client  desired  to  accept  less  than  one-half  in 
satisfaction  of  the  judgment.  Serwer  v.  Serwer,  91  App.  Div. 
538,  86  N.  Y.  Supp.  838. 

259.  Liability  of  husband  for  attorney's  services  rendered 
to  the  wife  as  attorney  in  an  action  for  separation,  see  Damman 
v.  Bancroft,  43  Misc.  678,  88  N.  Y.  Supp.  386. 

259,  n.  845.  Barry  v.  Third  Ave.  R.  Co.,  87  App.  Div.  543,  84 
N.  Y.  Supp.  830.  The  client  may  satisfy  a  judgment  awarding 
him  costs.  Early  v.  Whitney,  106  App.  Div.  399,  94  N.  Y. 
Supp.  728.  A  contract  of  retainer  to  pay  a  certain  per  cent, 
"of  whatever  amount  they  may  so  collect  for  me"  covers  the 
costs  taxed  in  the  action  as  well  as  the  damages  recovered  to 
the  amount  of  the  fixed  per  cent.,  though  the  costs  do  not  be- 
long in  gross  to  the  attorney.  Mcllvaine  v.  Steinson,  90  App. 
Div.  77,  85  N.  Y.  Supp.  889. 

261,  §  309.  Rendition  of  judgment  terminates  the  relation 
where  the  employment  is  merely  to  conduct  one  action.  Wint- 
ner  v.  Rosemont  Realty  Co.,  101  App.  Div.  30,  91  N.  Y.  Supp. 
452. 

264,  §  311.  While  the  attorney  cannot  sue  he  acquires  a  good 
title  which  he  may  transfer.  In  an  action  by  his  donee  or 
transferee  it  will  be  presumed  that  the  action  was  brought 
solely  in  the  interest  of  the  donee  or  transferee,  even  though 
she  be  the  wife  of  the  attorney,  though  the  court  may  refuse 
relief  if  it  appears  that  the  action  is  brought  in  the  interest  of 
the  attorney.  Beers  v.  Washbond,  86  App.  Div.  582,  83  N.  Y. 
Supp.  993.  While  an  attorney  cannot  sue  on  such  prohibited 
purchase,  "he  may  pass  title  to  the  security  either  to  a  bona 
fide  holder  or  to  one  who  had  full  knowledge  of  the  illegal  pur- 
pose, and  such  a  purchaser  may  have  the  aid  of  the  court  for 
the  enforcement  of  such  a  security  provided  only  that  the  pur- 
chase of  the  security  and  its  enforcement  are  not  in  fact  in  the 
interest  of  the  attorney."  Id.  A  person  admitted  to  the  bar 
but  who  has  never  filed  his  certificate  and  has  not  practiced 


4062  APPENDIX. 

for  several  years  is  not  within  this  Code  provision.  Thompson 
v.  st, Irs.  14  Misc.  334,  89  N.  Y.  Supp.  876. 

266,  n.  888.  A  contract  to  divide  a  contingent  fee,  while  not 
en  Forcible  by  the  attorney,  is  enforcible  against  the  attorney  by 
the  layman  with  whom  the  contract  is  made.  Irwin  v.  Curie, 
171  N.  Y.  409.  It  follows  that  the  proposition  laid  down  in  the 
text  that  "no  cause  of  action  can  arise  out  of  a  transaction  thus 
prohibited"  must  be  qualified  so  as  to  apply  to  a  cause  of  ac- 
tion in  favor  of  the  attorney. 

266,  n.  894.  But  a  general  or  special  appearance  in  an  action 
by  an  attorney  at  law  is  presumptive  evidence  of  the  authority 
of  the  attorney  so  to  appear.  Cutting  v.  Jessmer,  101  App.  Div. 
283,  91  N.  Y.  Supp.  658. 

269,  n.  914.  But  see  Jefferson  Bank  v.  Gossett,  45  Misc.  630, 
90  X.  Y.  Supp.  1049. 

270,  n.  920.  An  attorney  for  plaintiff  has  authority  to  stipu- 
late that  defendant  shall  have  the  same  time  in  which  to  answer 
or  demur  to  the  complaint  when  served  as  plaintiff  had  in  wdiich 
to  serve  the  complaint,  as  a  condition  to  the  granting  of  the 
stipulation  extending  plaintiff's  time  to  serve  the  complaint. 
Morris  v.  Press  Pub.  Co,  98  App.  Div.  143,  90  N.  Y.  Supp.  673. 

270,  n.  922.  Morris  v.  Press  Pub.  Co,  98  App.  Div.  143,  90 
X.  Y.  Supp.  673.  But  the  stipulation  should  not  be  relieved 
from  where  the  parties  cannot  be  placed  in  statu  quo  (Id.)  nor 
in  the  absence  of  prejudice  or  misrepresentation.  Lee  v.  Win- 
ans,  99  App.  Div.  297,  90  X.  Y.  Supp.  960. 

271,  n.  934.  That  attorney  has  power  to  authorize  another 
attorney  to  appear  for  him,  and  that  the  client  is  bound  by  such 
appearance,  is  held  in  Reich  v.  Cochran,  105  App.  Div.  542,  94 
X.  Y.  Supp.  404. 

278,  n.  981.  Kane  v.  Rose,  87  App.  Div.  101,  84  X.  Y.  Supp. 
111.  Such  a  reference  is  merely  to  take  testimony  and  report, 
so  that  the  referee  cannot  award  costs.  If  the  judge  who  or- 
ders it  goes  out  of  office  pending  the  reference,  a  motion  to 
confirm  it  may  be  made  by  the  original  attorney  or  his  counsel 
before  the  court.  Frost  v.  Reinach,  40  Misc.  412,  81  X.  Y.  Supp. 
246. 

278,  n.  984.  Where  the  attorney  abandons  the  case  without 
<-;uise,  after  receiving  an  allowance  from  the  court  for  counsel 


APPENDIX.  4063 

fees  pendente  lite  in  a  divorce  suit,  the  order  of  substitution 
should  not  award  him  additional  compensation.  Cary  v.  Cary, 
97  App.  Div.  471,  89  N.  Y.  Supp.  1061. 

279.  The  order  is  not  objectionable  because  it  provides  no 
punishment  in  case  of  failure  of  the  client  to  make  the  payment 
to  the  removed  attorney.  Kane  v.  Rose,  87  App.  Div.  101,  84 
N.  Y.  Supp.  111.  The  order  may  be  conditioned  on  payment  of 
the  amount  due  the  attorney  of  record,  and  where  a  reference 
has  been  ordered  to  determine  the  value  of  the  services  with 
a  direction  that  the  attorney  have  a  lien  for  the  amount  found 
due  him,  the  client  who  accepts  the  order  of  substitution  is 
bound  by  the  directions  as  to  the  lien.    Id. 

283.  That  the  client  can  only  proceed  by  action  in  the  sec- 
ond judicial  department,  see  Arone  v.  Saunders,  43  Misc.  138, 
88  N.  Y.  Supp.  259. 

292,  n.  1083.  Mathot  v.  Triebel,  98  App  Div.  328,  90  N.  Y. 
Supp.  903. 

293,  §  350.  The  lien  attaches  though  no  action  has  been  com- 
menced. Mathot  v.  Triebel,  98  App.  Div.  328,  90  N.  Y.  Supp. 
903. 

295,  n.  1098.  See,  also,  Serwer  v.  Serwer,  91  App.  Div.  538, 
S6  N.  Y.  Supp.  838. 

296,  §  352.  The  attorney  has  a  lien  on  a  life  insurance  policy 
placed  in  his  hands  to  prepare  and  file  proofs  of  loss  and  to  col- 
lect. Matter  of  Sweeney,  86  App.  Div.  547,  83  N.  Y.  Supp.  680. 
The  attorney  has  a  general  lien  on  the  papers  of  his  clients 
which  are  in  his  possession.  In  re  McGuire's  Estate,  106  App. 
Div.  131,  94  N.  Y.  Supp.  125. 

297,  n.  1116.  Corbit  v.  Watson,  88  App.  Div.  467,  85  N.  Y. 
Supp.  125. 

297,  n.  1117.  Of  course  if  the  stipulation  for  discontinuance 
has  been  obtained  from  the  plaintiff  by  fraud,  the  mere  offer 
to  pay  the  amount  of  his  attorney's  claim  does  not  require  that 
the  settlement  stand,  but  in  such  a  case  the  question  of  fraud 
should  be  tried  on  amended  pleadings.  Kuehn  v.  Syracuse 
Rapid  Transit  R.  Co.,  104  App.  Div.  580,  93  N.  Y.  Supp.. 883. 

298,  n.  1123.  Flannery  v.  Geiger,  16  Misc.  619,  92  N.  Y. 
Supp.  785. 

299,  n.   1129.     After  a   settlement,  "defendant's"  attorney 


-(ii;|  APPENDIX. 

will  not  be  granted  Leave  to  continue  the  action  to  obtain  costs 
againsl  the  plaintiff.  Pomeranz  v.  Marcus,  40  Misc.  442,  82 
X.  V.  Supp.  707. 

300.  If  the  attorneys  see  fit  to  bring  an  action  in  equity,  the 
court  cannot  object  to  the  application  of  that  remedy;  but, 
where  the  direction  of  the  court  is  asked  as  to  continuing  the 
action  to  judgment  for  the  benefit  of  the  attorneys  or  to  pro- 
ceed as  provided  for  by  section  66  of  the  Code,  the  court  should 
rarely,  if  ever,  permit  the  action  to  be  continued,  but  should 
exercise  the  power  clearly  given  by  section  66  of  the  Code,  and 
itself  determine  whether  a  lien  exists,  and  the  amount  thereof, 
and  should  then,  by  appropriate  remedy,  enforce  the  lien  so 
determined  to  exist.  Smith  v.  Acker  Process  Co.,  102  App. 
Div.  170,  92  N.  Y.  Supp.  351.  No  order  can  be  made  under  sec- 
tion 66  of  the  Code,  where  it  is  not  shown  what  amount  of  com- 
pensation is  claimed  by  the  attorneys,  nor  that  their  client  is 
not  financially  responsible  so  as  to  be  able  to  pay  the  amount 
actually  owing.  Smith  v.  Acker  Process  Co.,  102  App.  Div. 
170,  92  N.  Y.  Supp.  351. 

300,  n.  1134a.  In  an  action  to  enforce  a  lien,  where  the  cause 
was  settled  before  judgment,  the  defendant  in  the  original  ac- 
tion cannot  defend  on  the  ground  that  the  attorney's  agreement 
for  compensation  was  unconscionable.  Morehouse  v.  Brooklyn 
Heights  R.  Co.,  43  Misc.  414,  89  N.  Y.  Supp.  332. 

301,  n.  1135.  These  cases,  if  the}7  may  be  considered  as  hold- 
ing that  the  lien  cannot  be  enforced  by  a  petition  under  section 
66  of  the  Code,  are  overruled  by  the  late  decisions. 

301,  n.  1138.  Of  course  this  applies  only  where,  after  settle- 
ment, leave  is  granted  to  prosecute  or  defend  the  original  ac- 
tion. 

301,  n.  1140.  On  a  settlement  after  judgment,  plaintiff's  at- 
torney cannot  enforce  his  lien  against  the  judgment  debtor 
where  the  plaintiff  is  solvent  and  able  to  pay.  Gurley  v.  Gruen- 
stein,  44  Misc.  268,  89  N.  Y.  Supp.  887;  Corbit  v.  Watson,  88 
App.  Div.  467,  85  N.  Y.  Supp.  125.  See,  also,  Witmark  v.  Per- 
ley,  43  Misc.  14,  86  N.  Y.  Supp.  756. 

304.  The  attorney's  lien  on  a  judgment  for  costs  is  superior 
to  any  equitable  right  of  set-off  which  the  defendant  has.  Barry 
v.  Third  Ave.  R.  Co.,  87  App.  Div.  453,  84  N.  Y.  Supp.  830. 


APPENDIX.  4065 

306,  §  358.  The  supreme  court  has  power  to  enforce  the 
lien,  under  section  66,  though  the  only  services  to  be  rendered 
were  in  connection  with  establishing  a  claim  in  the  surrogate's 
court  against  the  estate  of  a  deceased  person.  Matter  of  Pieris, 
82  App.  Div.  466,  81  N.  Y.  Supp.  927.  Instead  of  enforcing  the 
lien  under  section  66  of  the  Code,  the  attorney  may  sue  on  his 
contract  of  retainer  as  for  money  had  and  received  by  defend- 
ant for  his  use.  Flannery  v.  Geiger,  46  Misc.  619,  92  N.  Y. 
Supp.  785. 

306,  n.  1168.  This  case  must  now  be  considered  in  connection 
with  Fischer-Hansen  v.  Brooklyn  Heights  R.  Co.,  173  N.  Y. 
492,  which  holds  that  an  independent  action  lies  to  enforce  the 
lien. 

306,  n.  1170.  If  it  is  decided  that  the  attorney  has  no  lien, 
the  court  may  direct  him  to  pay  over  to  his  client  the  money 
which  he  retains.  Radley  v.  Gaylor,  98  App.  Div.  158,  90  N.  Y. 
Supp.  758. 

306,  n.  1171.  In  an  action  to  enforce  the  lien  on  a  contract 
between  the  client  and  a  third  person  and  on  the  money  due 
thereon,  such  third  person  is  not  a  necessary  party.  Mathot 
v.  Triebel,  98  App.  Div.  328,  90  N.  Y.  Supp.  903. 

307,  n.  1174.  Such  a  reference  is  one  merely  to  take  testi- 
mony and  report  the  referee 's  opinion,  so  that  the  report  is  not 
binding  on  the  court.  The  referee  has  no  power  to  grant  costs 
or  an  extra  allowance.  A  motion  to  confirm  the  report  is  proper 
practice.    Frost  v.  Reinach,  40  Misc.  412,  81  N.  Y.  Supp.  246. 

314,  n.  1218.  This  Code  section  is  amended  by  Laws  1903, 
c.  467,  by  adding  a  provision  prohibiting  a  court  stenographer 
from  becoming  interested  in  any  way  in  relation  to  the  printing 
of  any  work  furnished  by  him. 

315.  The  fact  that  there  is  no  official  interpreter  attached  to 
the  court  does  not  preclude  the  appointment  of  one  proposed  by 
a  party  though  the  opposing  party  refuses  to  consent  to  the 
appointment  of  said  person.  Menella  v.  Metropolitan  St.  R. 
Co.,  43  Misc.  5,  86  N.  Y.  Supp.  930. 

317,  n.  1229.     Nature  of  criminal  contempts,  see,  also,  People 
ex  rel.  Stearns  v.  Marr,  181  N.  Y.  463,  466. 
319,  §  381.     The  power  to  punish  for  contempt  is  inherent  and 
N.  Y.  Prac—  255. 


4066  APPENDIX. 

exists  independent  of  statute.  People  ex  rel.  Stearns  v.  Marr, 
88  App.  Div.  422,  84  N.  Y.  Supp.  965. 

321,  §  383,  subd.  1.  Abstracting  and  secreting  a  written  con- 
tract under  investigation,  pending  the  attorney's  opening  to  the 
jury,  is  a  criminal  contempt.  Matter  of  Teitelbaum,  84  App. 
Div.  351,  82  N.  Y.  Supp.  887.  Desertion  of  the  case,  by  an  at- 
torney, in  the  midst  of  the  trial,  after  repeated  efforts  to  com- 
pel the  court  to  rescind  a  ruling,  is  punishable  as  a  criminal 
contempt.  People  ex.  rel.  Chanler  v.  Newburger,  98  App.  Div. 
92,  90  N.  Y.  Supp.  740. 

325,  subd.  2.  The  party  need  not  first  exhaust  all  other  rem- 
edies for  making  good  the  damages.  Matter  of  Goslin,  95  App. 
Div.  407,  88  N.  Y.  Supp.  670. 

325,  n.  1273.  The  fact  of  insolvency  must  be  shown  beyond 
a  reasonable  doubt.  Johnson  v.  Austin,  76  App.  Div.  312,  78 
N.  Y.  Supp.  501. 

326.  "Fictitious  bail"  is  not  limited  to  a  false  signature  or 
to  an  insolvent  surety  but  also  includes  bail  which  the  obligee 
may  not  realize  on,  as  where  a  party  gives  an  undertaking  with 
knowledge  that  the  sole  surety  is  a  minor.  Hall  v.  Lanza,  97 
App.  Div.  490,  89  N.  Y.  Supp.  980. 

329,  subd.  4.  Offering  money  and  persistently  urging  a  wife 
to  settle  an  action  against  her  husband  and  to  disregard  her  at- 
torney's advice  is  not  a  contempt.  Herrmann  v.  Herrmann,  82 
App.  Div.  437,  81  N.  Y.  Supp.  811. 

333,  §  386.  A  purchaser  at  a  judicial  sale  may  be  compelled 
to  perform  by  contempt  proceedings  though  the  order  may  also 
be  enforced  by  execution.  Rowley  v.  Feldman,  84  App.  Div. 
400,  82  N.  Y.  Supp.  679.  That  the  persons  violating  an  injunc- 
tion were  not  parties  to  the  action  in  which  the  injunction  was 
issued  does  not  prevent  their  punishment  as  for  a  criminal  con- 
tempt.   People  ex  rel.  Stearns  v.  Marr,  181  N.  Y.  463,  468. 

.334,  n.  1335.  That  the  injunction  order  was  not  personally 
served  on  persons  violating  it  does  not  preclude  punishment  for 
criminal  contempt  where  they  had  knowledge  of  the  injunction 
and  of  its  terms.  People  ex  rel.  Stearns  v.  Marr,  181  N.  Y.  463, 
470.  This  is  so  even  as  against  one  not  a  party  to  the  action. 
Id. 


APPENDIX.  4067 

336,  n.  1349.  Lawson  v.  Tyler,  98  App.  Div.  10,  90  N.  Y. 
Supp.  188. 

340,  n.  1369.  That  chemical  formulas  ordered  to  be  turned 
over  to  a  receiver  have  been  destroyed  by  fire  is  no  excuse  for 
disobeying  the  order,  where  it  is  shown  that  the  defendant  had 
carried  on  business  for  a  long  time,  and  made  use  of  the  formu- 
las in  compounding  medicines  and  that  he  made  up  and  com- 
pounded such  medicine  without  the  aid,  in  many  instances,  of 
the  written  formula,  and  where  he  makes  no  claim  of  inability 
to  reproduce.  Lawson  v.  Tyler,  98  App.  Div.  10,  90  N.  Y.  Supp. 
188. 

341,  §  389.  Persons  not  parties  to  the  action  in  which  the  or- 
der disobeyed  was  granted  may  be  punished,  and  this  is  so  even 
though  the  order  was  not  personally  served  on  them,  where 
they  had  knowledge  of  it.  This  rule  covers  strikers  who  are 
members  of  a  union  which  has  been  enjoined.  People  ex  rel. 
Stearns  v.  Marr,  181  N.  Y.  463. 

349.  Where  an  action  is  brought  in  a  municipal  or  justice 
court,  and  removed  to  the  supreme  court  on  a  plea  of  title  to 
real  estate  being  involved,  the  defendant  has  no  absolute  right 
to  the  prosecution  of  the  action  in  the  county  where  the  real 
estate  is  situated.  Eaton  v.  Hall,  78  App.  Div.  542,  79  N.  Y. 
Supp.  887. 

351.  n.  27.  An  action  for  an  accounting  and  sale  of  property 
brought  in  the  names  of  plaintiff  and  defendant  as  trustees  for 
their  benefit  and  that  of  their  associates,  was  held  not  within 
this  Code  subdivision.  Barnes  v.  Barnhart,  102  App.  Div.  424, 
92  N.  Y.  Supp.  459. 

352.  That  the  action  will  also  affect  the  title  to  personal 
property  does  not  require  the  action  to  be  tried  in  a  county 
where  one  of  the  parties  resides.  Hall  v.  Gilman,  77  App.  Div. 
464,  79  N.  Y.  Supp.  307. 

353.  An  action  to  compel  a  cemetery  corporation  to  allow 
plaintiffs  to  remove  a  dead  body  from  the  cemetery  to  reinter 
it  in  another  cemetery  does  not  affect  any  right  or  interest  in 
real  property.  Cohen  v.  Congregation  Shearith  Israel,  85  App. 
Div.  65,  82  N.  Y.  Supp.  918. 

355.  An  action  to  recover  back  money  lost  on  a  wager, 
where  based  on  1  Rev.  St.  662,  §§  8,  9,  as  distinguished  from 


((M;s  APPENDIX. 

Laws  1895,  c.  5-70,  §  17,  is  not  an  action  for  a  penalty.  Mendo/.a 
v.  Rose,  44  Misc.  241,  88  N.  Y.  Supp.  938. 

355,  ii.  51.  Bell  v.  Polymero,  99  App.  Div.  303,  90  N.  Y. 
Supp.  920. 

360,  n.  88.  The  residence  "at  the  time  of  the  commencement 
of  the  action"  governs.  Burke  v.  Frenkel,  97  App.  Div.  19, 
89  N.  Y.  Supp.  621. 

362,  n.  101.  The  action  is  properly  brought  in  the  county 
in  which  plaintiff  resides  though  he  may  also  have  a  residence 
elsewhere.  Bischoff  v.  Bischoff,  88  App.  Div.  126,  85  N.  Y. 
Supp.  81.  In  the  first  department,  however,  it  is  held  that  the 
fact  that  a  person  has  apartments  which  he  occupies  while  in 
the  city  of  New  York  and  has  an  office  in  such  city  for  the  trans- 
action of  business,  does  not  make  him  a  resident  of  New  York 
city,  but  that  the  residence  contemplated  by  the  statute  is  a 
permanent  residence.  "Washington  v.  Thomas,  103  App.  Div. 
423,  92  N.  Y.  Supp.  994.  This  last  case  seems  to  conflict  with 
the  weight  of  authority. 

362,  n.  102.  Question  of  residence  is  largely  one  of  inten- 
tion.   Bischofi  v.  Bischoff,  88  App.  Div.  126,  85  N.  Y.  Supp.  81. 

362,  n.  104.  In  opposition  to  the  rule  laid  down  in  the  text 
is  Rathbun  v.  Brownell,  43  Misc.  307,  88  N.  Y.  Supp.  833,  which 
lays  down  the  common  sense  rule  that  the  residence  of  a  party 
to  the  record  who  is  not  a  necessary  or  proper  party  is  to  be 
disregarded  though  the  fact  that  no  relief  is  sought  against  a 
defendant  does  not  make  him  an  improper  or  unnecessary 
party. 

363,  n.  108.  Poland  v.  United  Traction  Co.,  is  officially  re- 
ported in  88  App.  Div.  281. 

375,  n.  403.  Cestui  que  trust  cannot  sue  in  relation  to  the 
trust  property  until  the  trustee  has  refused  to  sue.  Woolf  v. 
Barnes,  46  Misc.  169,  93  N.  Y.  Supp.  219. 

376.  At  common  law  an  action  on  a  bond  under  seal  must  be 
brought  in  the  name  of  the  obligee,  irrespective  of  the  owner, 
and  this  is  still  the  rule  in  this  state  except  where  the  same  has 
been  modified  by  statute.  Alexander  v.  Union  Surety  &  Guar- 
anty Co.,  89  App.  Div.  3,  85  N.  Y.  Supp.  282. 

376,  n.  14.  Whether  payment  of  a  judgment  recovered  by 
the  plaintiff  will  fully  protect  the  defendant  from  the  claims 


APPENDIX.  4069 

of  third  persons  is  the  test  whether  the  plaintiff  is  the  real 
party  in  interest.  St.  James  Co.  v.  Security  Trust  &  Life  Ins. 
Co.,  82  App.  Div.  242,  81  N.  Y.  Supp.  739 ;  Meinhardt  v.  Ex- 
celsior Brewing  Co.,  98  App.  Div.  308,  90  N.  Y.  Supp.  642. 

379.  It  is  no  longer  open  to  question  in  this  state  that  the 
assignee  of  part  of  a  claim  may  maintain  an  action  to  recover 
the  portion  which  has  been  assigned  to  him.  Chase  v.  Deering, 
104  App.  Div.  192,  93  N.  Y.  Supp.  434.  An  assignee  of  a  part 
of  an  entire  claim  for  money  alleged  to  be  due  on  a  contract,  in 
a  suit  against  the  debtor  to  recover  the  part  assigned  to  him, 
cannot  make  the  assignee  of  another  part  of  the  claim  and  the 
assignor  who  retains  the  balance  of  the  claim,  co-defendants 
with  the  debtor,  where  the  plaintiff  does  not  state  or  attempt  to 
state  any  cause  of  action  against  either  of  such  co-defendants, 
and  where  the  debtor  does  not  demand  the  presence  of  such 
parties  but  seeks  to  have  the  allegations  relating  thereto 
stricken  out  of  the  complaint  as  irrelevant  because  such  facts 
may  have  the  effect  of  changing  the  mode  of  trial.  Id.  One 
who  has  made  a  general  assignment  and  parted  with  all  interest 
in  the  cause  of  action,  pending  the  action,  and  thereafter 
amends  so  as  to  state  a  new  cause  of  action,  is  not  the  real  party 
in  interest  and  cannot  maintain  the  action.  Foster  v.  Central 
Nat.  Bank,  93  N.  Y.  Supp.  603. 

379,  n.  25.  Hunter  v.  Allen,  106  App.  Div.  557,  94  N.  Y. 
Supp.  880.  The  fact  that  the  transaction  as  between  the  par- 
ties appears  to  have  been  merely  colorable  constitutes  no  de- 
fense on  the  ground  that  the  assignee  was  not  the  real  party  in 
interest.  Where  an  assignment  is  valid  upon  its  face,  a  debtor 
will  not  be  permitted  to  raise  a  question  as  to  the  consideration 
or  the  equities  between  the  assignor  and  the  assignee.  Fried- 
man v.  Sclmlman,  46  Misc.  572,  92  N.  Y.  Supp.  801.  That  the 
action,  in  such  a  case,  may  be  brought  by  the  assignor,  see 
Hawkins  v.  Mapes-Reeve  Const.  Co.,  178  N.  Y.  236,  242. 

388.  While  ordinarily  all  the  partners  constituting  a  firm 
must  join  as  plaintiffs  in  an  action  relating  to  firm  business,  yet 
where  one  of  the  partners  is  a  trustee  of  an  express  trust  in 
respect  to  the  fund  sought  to  be  recovered,  he  may  sue  alone. 
Meinhardt  v.  Excelsior  Brewing  Co.,  98  App.  Div.  308,  90  N. 
Y.  Supp.  642. 


4070  APPENDIX. 

391,  11.  93.  Followed  in  Hunt  v.  Provident  Sav.  Life  Assur. 
Soc,  77  App.  Div.  338,  342,  79  N.  Y.  Supp.  74. 

392,  §  417.  No  action  can  be  maintained  at  law  between  two 
firms  having  one  member  common  to  both.  Taylor  y.  Thomp- 
son, 176  N.  Y.  168,, 176,  177. 

403,  n.  151.  Cobb  v.  Monjo,  90  App.  Div.  85,  85  N.  Y.  Supp. 
597. 

405.  One  whose  property  has  been  destroyed  by  fire  may 
join  with  insurance  companies  who  have  paid  their  share  of 
the  loss  and  taken  an  assignment  pro  tanto,  in  an  action  against 
a  railroad  company,  to  recover  the  damages  for  negligently  set- 
ting fire  to  the  property.  Jacobs  v.  N.  Y.  Cent.  &  H.  R.  R.  Co., 
107  App.  Div.  134,  94  N.  Y.  Supp.  954. 

406.  n.  167.  Where  the  language  of  the  agreement  is  joint, 
all  the  parties  to  whom  the  obligation  runs  must  join  as  plaint- 
iffs unless  the  complaint  shows  that  the  nature  of  the  interest 
is  really  several.  Fisher  Textile  Co.  v.  Perkins,  100  App.  Div. 
19,  90  N.  Y.  Supp.  993. 

407.  In  an  action  by  a  mortgagor  on  a  fire  insurance  policy, 
the  mortgagee,  to  whom  the  loss  is  payable  to  the  extent  of  his 
interest,  is  so  united  in  interest  that  where  he  refuses  to  join 
as  plaintiff,  he  should  be  made  a  defendant.  Lewis  v.  Guardian 
F.  &  L.  Assur.  Co.,  181  N.  Y.  392,  396. 

413,  n.  218.  This  applies  to  members  of  a  firm.  Hyde  & 
Sons  v.  Lesser,  93  App.  Div.  320,  87  N.  Y.  Supp.  878.  In  an 
equity  suit,  all  persons  materially  interested,  either  legally  or 
beneficially,  must  be  joined.  International  Paper  Co.  v.  Hud- 
son River  Water  Power  Co.,  92  App.  Div.  56,  66,  86  N.  Y.  Supp. 
736. 

421,  n.  262.     Holly  v.  Gibbons,  176  N.  Y.  520. 

422,  n.  266.  Schun  v.  Brooklyn  Heights  R.  Co.,  is  officially 
reported  in  82  App.  Div.  560.  In  an  action  at  law,  where  a 
money  judgment  alone  is  sought,  a  plaintiff  can  neither  be  com- 
pelled nor  permitted,  under  the  provisions  of  section  452  of  the 
Code  of  Civil  Procedure,  to  bring  in  other  parties  than  those 
he  chose  originally  to  make  defendants.  Ten  Eyck  v.  Keller, 
99  App.  Div.  106,  91  N.  Y.  Supp.  169. 

423,  n.  272.  Pope  v.  Manhattan  R.  Co.  is  officially  reported 
in  79  App.  Div.  583. 


APPENDIX.  4071 

426,  n.  289.  The  power  to  bring  in  as  a  party  a  purchaser 
pendente  lite  is  not  limited  to  an  application  before  judgment. 
H.  Koehler  &  Co.  v.  Brady,  82  App.  Div.  279,  288,  81  N.  Y.  Supp. 
695. 

426,  n.  292.  Lehrer  v.  Walcoff,  47  Misc.  112,  93  N.  Y.  Supp. 
540. 

427,  n.  294.  An  order  requiring  the  service  of  an  amended 
and  supplemental  summons  by  publication,  where  such  sum- 
mons requires  the  new  defendant  to  answer  the  complaint, 
i.  e.,  the  amended  complaint,  is  sufficient.  Meeks  v.  Meeks,  87 
App.  Div.  99,  84  N.  Y.  Supp.  67. 

428,  n.  307.  So  the  court  may  permit  an  infant  to  intervene, 
though  he  is  neither  a  necessary  or  proper  party,  where  the  in- 
terests of  the  infant  will  otherwise  not  be  properly  guarded. 
Mertens  v.  Mertens,  87  App.  Div.  295,  84  N.  Y.  Supp.  352 ;  dis- 
tinguished in  Honigbaum  v.  Jackson,  97  App.  Div.  527,  90  N. 
Y.  Supp.  182.  But  the  inherent  power  of  the  court  to  allow  a 
person  to  intervene,  if  it  exists,  will  not  be  exercised  except  in 
case  of  special  circumstances.  Honigbaum  v.  Jackson,  97  App. 
Div.  527,  90  N.  Y.  Supp.  182. 

429,  §  449.  Strike  out  last  sentence  and  insert:  "The  stat- 
ute does  not  apply  to  an  action  in  which  a  money  judgment  only 
is  sought  and  where  no  title  to  property  is  involved."  (See 
pp.  430,  431,  note  322,  and  additional  cases  under  431,  n.  322  in 
this  appendix.) 

429,  n.  314.  The  right  is  absolute,  in  the  absence  of  laches. 
Draper  v.  Pratt,  43  Misc.  406,  89  N.  Y.  Supp.  356. 

430,  §  452.  A  creditor  of  a  defendant  in  a  mortgage  fore- 
closure suit  is  not  entitled  to  intervene.  Bouden  v.  Long  Acre 
Square  Bldg.  Co.,  92  App.  Div.  325,  86  N.  Y.  Supp.  1080.  So 
a  third  person  is  not  entitled  to  intervene  in  a  foreclosure  suit 
where  the  defendant  merely  alleges  payment  and  denies  the 
assignment  to  plaintiff  of  the  bond  and  mortgage,  since  the  ac- 
tion neither  involves  title  to  real  property  nor  to  specific  tangi- 
ble personal  property.  Draper  v.  Pratt,  43  Misc.  406,  89  N.  Y. 
Supp.  356. 

431,  That  the  person  seeking  to  intervene  is  represented  in 
the  action  by  a  receiver  is  no  ground  for  refusing  the  applica- 
tion where  his  rights  are  liable  to  be  prejudiced  by  a  settlement 


4072  APPENDIX. 

of  the  action.  Hosmer  v.  Darrah,  85  App.  Div.  485,  83  N.  Y. 
Supp.  413. 

431,  n.  322.  Followed  in  Long  v.  Burke,  105  App.  Div.  457, 
94  N.  Y.  Supp.  277 ;  Honigbaum  v.  Jackson,  97  App.  Div.  527, 
90  N.  Y.  Supp.  182;  Westinghouse,  Church,  Kerr  &  Co.  v. 
Wyckoff,  81  App.  Div.  294,  81  N.  Y.  Supp.  49 ;  City  of  Ironwood 
v.  Coffin,  39  Misc.  278,  79  N.  Y.  Supp.  502. 

431,  n.  329.  It  is  not  sufficient  to  show  merely  a  possibility 
of  an  interest  is  the  property.  Van  Williams  v.  Elias,  106  App. 
Div.  288,  94  N.  Y.  Supp.  611. 

433,  §  453.  The  application  cannot  be  made  by  a  party  to 
the  action.  Goldstein  v.  Shapiro,  85  App.  Div.  83,  82  N.  Y. 
Supp.  1038. 

433,  n.  350.  It  is  believed  that  while  ordinarily  the  right  to 
intervene,  where  the  applicant  brings  himself  within  the  Code 
provision,  is  absolute,  so  that  the  order  can  impose  no  terms, 
yet  where  the  applicant  has  been  guilty  of  laches  in  moving, 
terms  may  be  imposed,  as  they  may  where  the  intervention  is 
allowed  because  of  the  inherent  power  of  the  court.  In  Hos- 
mer v.  Darrah,  85  App.  Div.  485,  83  N.  Y.  Supp.  413,  terms 
were  imposed  though  the  right  to  intervene  would  seem  to  have 
been  absolute.  In  any  event,  the  court  cannot  require  the  in- 
tervening defendant  to  appear  and  defend  through  the  attor- 
ney employed  by  the  other  defendants.  O'Connor  v.  Hendrick, 
90  App.  Div.  432,  86  N.  Y.  Supp.  1. 

441,  n.  14.  A  different  period  of  time  may  be  prescribed  by 
an  insurance  policy  for  an  action  thereon.  Tolmie  v.  Fidelity 
&  Casualty  Co.,  95  App.  Div.  352,  357,  88  N.  Y.  Supp.  717.  In 
Wetyen  v.  Fick,  178,  N.  Y.  223,  it  is  held  that  section  401  of 
the  Code  which  provides  that  limitations  do  not  run  during  the 
time' the  defendant  is  without  the  state,  where  he  is  without  the 
state  at  the  time  the  cause  of  action  accrues,  does  not  apply  to 
an  action  for  dower  since  "a  different  limitation  is  expressly 
prescribed  by  law,"  i.  e.,  by  section  1596  of  the  Code,  so  that 
the  provisions  of  chapter  four  of  the  Code  do  not  apply. 

441,  n.  15.  People  ex  rel.  McCabe  v.  Snedeker,  106  App.  Div. 
89,  94  N.  Y.  Supp.  319.  To  same  effect,  Conolly  v.  Hyams,  176 
N.  Y.  403.     The  cases  cited  in  this  note  are  distinguished  in 


APPENDIX.  41 1 73 

Wetyen  v.  Fick,  178  N.  Y.  223,  which  must  be  held  to  modify 
the  rule  laid  down  in  the  text  as  supported  by  the  cases  cited, 
at  least  in  so  far  as  the  action  of  dower  is  concerned,  i.  e.,  the 
Wetyen  case  holds  that  none  of  the  general  Code  provisions  as 
to  limitations  apply  to  an  action  for  dower  but  that  section 
1596  alone  governs. 

442,  n.  19.  But  see  Wetyen  v.  Fick,  178  N.  Y.  223,  as  already 
explained  in  preceding  paragraph. 

445,  n.  41.  Colell  v.  Delaware,  L.  &  W.  R.  Co.,  80  App.  Div. 
342,  80  N.  Y.  Supp.  675. 

445,  n.  42.  But  by-laws  of  a  fraternal  insurance  order  can- 
not be  changed,  after  the  application  for  membership  of  a  per- 
son, so  as  to  shorten  the  time  to  sue,  where  he  does  not  consent 
thereto.  Butler  v.  Supreme  Council  A.  L.  H.,  105  App.  Div. 
164,  93  N.  Y.  Supp.  1012. 

448,  n.  57.  Code  provisions  applied  in  Chesapeake  Coal  Co. 
v.  Menges,  102  App.  Div.  15,  92  N.  Y.  Supp.  1003;  Holmes  v. 
Hengen,  41  Misc.  521,  85  N.  Y.  Supp.  35. 

448,  n.  58.  Changing  the  limitation  of  the  time  to  sue  offi- 
cers of  a  corporation  for  failure  to  file  an  annual  report,  from 
three  years  to  six  months,  is  not  void  as  interfering  with  an 
existing  property  right.  Davidson  v.  Witthaus,  106  App.  Div. 
182,  94  N.  Y.  Supp.  428. 

449,  n.  61.  Six  months  held  a  reasonable  time  where  limita- 
tion of  actions  for  failure  of  officers  of  corporation  to  file  their 
annual  report  was  changed  from  three  years  to  six  months. 
Davidson  v.  Witthaus,  106  App.  Div.  182,  94  N.  Y.  Supp.  428. 

449,  n.  64.  Matter  of  Moench's  Estate,  39  Misc.  480,  80  N. 
Y.  Supp.  222;  Matter  of  Guttoff's  Estate,  39  Misc.  483,  80  N.  Y. 
Supp.  219. 

454,  n.  89.  A  stranger  cannot  rely  on  the  statute.  Perry  v. 
Williams,  40  Misc.  57,  81  N.  Y.  Supp.  204.  The  successor  of  a 
municipal  corporation  may  plead  the  statute  the  same  as  could 
its  predecessor.  Kahrs  v.  City  of  N.  Y.,  98  App.  Div.  233,  90 
N.  Y.  Supp.  793.  The  defense  of  limitations  may  be  set  up  by 
the  assignee  of  a  second  mortgage  in  an  action  to  reform  the 
discharge  of  a  first  mortgage  and  to  foreclose  such  mortgage. 
Perry  v.  Fries,  90  App.  Div.  484,  85  N.  Y.  Supp.  1064. 


4u74  APPENDIX. 

454,  n.  95.  The  proposition  that  "a  foreign  corporation 
sued  in  the  state  court  can  avail  itself  of  the  statute  of  limita- 
tions'' should  read  "cannot,"  and  the  cases  cited  so  hold  and 
are  followed  in  Gray  Lith.  Co.  v.  American  Watchman's  Time 
Detector  Co.,  44  Misc.  206,  88  N.  Y.  Supp.  857. 

458,  n.  118.  Construction  of  section  1499  of  the  Code,  see 
post,  484,  n.  292. 

460.  There  must  be  an  adverse  entry.  Hindley  v.  Manhat- 
tan R.  Co.,  103  App.  Div.  504,  93  N.  Y.  Supp.  53. 

460,  n.  132.  Possession  under  a  tax  lease  is  not  adverse. 
Miller  v.  Warren,  94  App.  Div.  192,  87  N.  Y.  Supp.  1011. 

462,  n.  139.  Piles  driven  outside  of  a  dock,  but  not  used,  do 
not  constitute  a  substantial  inclosure.  Fortier  v.  Delaware,  L. 
&  W.  R.  Co.,  93  App.  Div.  24,  86  N.  Y.  Supp.  896. 

467,  n.  164.  The  amendment  of  1894  extended  the  twenty 
year  rule  to  judgments  of  courts  not  of  record  "thereafter" 
docketed  with  the  county  clerk.  Matter  of  Guttroff' s  Estate, 
39  Misc.  483,  80  N.  Y.  Supp.  219. 

473,  n.  214.  It  seems,  however,  that  where  there  is  a  "de- 
mand due"  the  six  year  statute  applies.  For  instance,  six  years 
is  the  limitation  where  a  beneficiary  sues  to  recover  a  money 
judgment  against  the  personal  representatives  of  one  acting 
in  a  fiduciary  capacity.  Libby  v.  Van  Derzee,  80  App.  Div. 
494,  81  N.  Y.  Supp.  139.  So  a  motion  to  compel  an  executor 
of  a  trustee  to  account  for  specific  moneys  which  the  trustee  had 
received  is  a  proceeding  to  recover  a  demand  that  is  due  and 
as  such  is  not  governed  by  the  ten  years'  statute  but  is  barred 
in  six  years  in  analogy  to  an  action  at  law.  Matter  of  Cruik- 
shank's  Estate,  40  Misc.  325,  81  N.  Y.  Supp.  1029,  which  re- 
fuses to  follow  Matter  of  Longbotham,  38  App.  Div.  607,  57 
N.  Y.  Supp.  118,  in  so  far  as  it  applies  to  all  actions  for  an  ac- 
counting. 

473,  n.  215.     See  preceding  paragraph. 

474,  n.  220.  Actions  on  sealed  instruments  are  not  limited 
to  six  years.  City  of  N.  Y.  v.  Third  Ave.  R.  Co.,  42  Misc.  599, 
605,  87  N.  Y.  Supp.  584.  An  action  against  the  administrator 
of  an  executor  to  recover  moneys  collected  by  the  executor, 
where  no  accounting  is  demanded,  is  an  action  on  an  implied 


APPENDIX.  4075 

contract  which  must  be  brought  within  six  years.  Constantine 
y.  Constantine,  91  App.  Div.  607,  87  N.  Y.  Supp.  139.  In  an 
action  on  an  account  stated,  where  the  complaint  showed  that 
the  items  of  the  account  extended  over  a  period  of  more  than 
seven  years  prior  to  the  time  the  account  was  stated,  and  it  did 
not  necessarily  appear  that  it  was  an  open  mutual  running  ac- 
count against  which  the  statute  of  limitations  would  not  run 
until  the  date  of  the  last  item,  and  the  account  stated  is  not 
shown  to  be  in  writing  or  assented  to  in  writing,  and  there  is  no 
allegation  of  an  adjustment  of  differences  constituting  a  con- 
sideration for  the  payment  of  outlawed  claims,  the  statute  of 
limitations  may  be  interposed  to  those  items  against  which  the 
statute  had  run.  Delabarre  v.  McAlpin,  101  App.  Div.  468,  92 
N.  Y.  Supp.  129. 

474,  n.  224.  This  six  year  limitation  is  not  affected  by  Laws 
1896,  c.  910,  which  provides  that  when  an  assessment  has  been 
annulled  by  judgment,  the  amount  thereof  may  be  refunded, 
and  if  not  refunded  within  one  year  from  such  judgment  an 
action  may  be  brought  to  recover  the  same.  Dennison  v.  City 
of  N.  Y.,  182  N.  Y  24. 

480,  n.  262.  This  limitation  of  three  years  is  changed  to  six 
months  by  Laws  1901,  c.  354,  which  applies  to  a  right  of  action 
accruing  under  the  prior  laws.  Davidson  v.  Witthaus,  106 
App.  Div.  182,  94  N.  Y  Supp.  428. 

480,  n.  264.  This  Code  provision  applies  to  directors  and 
stockholders  of  foreign  as  well  as  domestic  corporations.  Piatt 
v.  Wilmot,  193  U.  S.  602.  A  "moneyed  corporation"  is  a  cor- 
poration having  banking  powers  or  the  power  to  make  loans 
on  pledges  or  deposits,  or  authorized  by  law  to  make  insurances. 
Id.  The  liability  is  created  "by  the  common  law  or  by  statute" 
where  the  statute  is  the  foundation  for  the  implied  contract 
arising  from  the  purchase  of  or  subscription  for  stock.     Id. 

482,  n.  278.  The  words  "personal  injuries,"  as  used  in  this 
statute,  include  injuries  resulting  in  death,  and  apply  to  actions 
authorized  by  section  1902  of  the  Code,  if  against  municipalities 
having  50,000  inhabitants  or  over.  Titman  v.  City  of  N.  Y.,  57 
Hun,  469,  10  N.  Y.  Supp.  689 ;  Littlewood  v.  City  of  N.  Y.,  89 
N.  Y.  24 ;  Curry  v.  City  of  Buffalo,  57  Hun,  25,  10  N.  Y.  Supp. 


40  TO  APPENDIX. 

392  ■  Crapo  v.  City  of  Syracuse,  98  App.  Div.  376,  90  N.  Y.  Supp, 
553. 

483,  n.  286.  The  limitation  of  two  years  specified  in  section 
1902  of  the  Code,  within  which  an  action  for  negligence  result- 
ing in  death  must  be  commenced,  was  changed  by  chapter  572, 
p.  801,  of  the  Laws  of  1886,  when  brought  against  a  city  in  the 
state  having  50,000  inhabitants  or  over.  As  to  such  actions  the 
limitation  is  one  year  after  the  cause  of  action  accrues,  the  act 
superseding  and  taking  the  place  of  the  provision  of  the  Code 
in  that  regard.  Crapo  v.  City  of  Syracuse,  98  App.  Div.  376, 
90  N.  Y.  Supp.  553. 

483,  n.  287.  Construction  of  section  1499  of  the  Code,  see 
next  paragraph. 

484,  n.  292.  Section  1499  of  the  Code  only  applies  where  the 
owners  of  both  pieces  of  land  have  erected  buildings  whose 
walls  abut  one  on  the  other,  and  who  have  thereby  apparently 
made  a  practical  location  of  the  boundary  line.  Bergman  v. 
Klein,  97  App.  Div.  15,  89  N.  Y.  Supp.  624. 

485,  Limitations  begin  to  run  from  the  time  of  death,  in  an 
action  to  recover  damages  for  causing  death  by  wrongful  act, 
rather  than  from  the  date  of  issuing  letters  of  administration. 
Crapo  v.  City  of  Syracuse,  98  App.  Div.  376,  90  N.  Y.  Supp.  553. 
Service  by  mail  of  notice  of  rejection  of  claim  is  a  sufficient 
service  to  start  running  the  six  months  within  which  an  action 
must  be  brought  on  a  claim  against  a  decedent.  Heinrich  v. 
Heidt,  106  App.  Div.  179,  94  N.  Y.  Supp.  423.  Lapse  of  time 
is  never  a  bar  to  a  claim  against  the  state  so  long  as  there  is  no 
tribunal  to  which  the  claim  may  be  presented  and  by  which  it 
may  be  passed  on  and  payment  awarded.  People  ex  rel.  Essex 
County  v.  Miller,  181  N.  Y.  439,  446.  A  cause  of  action  in  favor 
of  an  infant  to  impress  a  trust  on  real  estate  purchased  at  a 
foreclosure  sale  by  his  guardian  accrues  at  the  time  of  the 
purchase  and  not  at  the  time  the  infant  reaches  his  majority. 
Cahill  v.  Seitz,  93  App.  Div.  105,  86  N.  Y.  Supp.  1009. 

489,  n.  315.  Limitations  do  not  run  in  favor  of  an  executor 
so  as  to  bar  an  action  for  an  accounting  which  involves  the  con- 
struction of  the  will,  where  the  executor  has  not  repudiated  his 
trust  but  has  merely  made  a  mistake  in  his  interpretation  of  the 


APPENDIX.  4077 

will.  Thorn  v.  De  Breteuil,  86  App.  Div.  405,  433-435,  83  N.  Y. 
Supp.  849.  A  trustee  who  sets  up  limitiations  as  a  defense 
must  allege  not  only  lapse  of  time  but  also  such  lapse  of  time 
after  a  repudiation  of  the  trust.  Matter  of  Meyer's  Estate,  98 
App.  Div.  7,  90  N.  Y.  Supp.  185. 

492,  n.  334.  Matter  of  Meyer's  Estate,  98  App.  Div.  7,  90 
N.  Y.  Supp.  185. 

493,  Where  a  certificate  of  stock  is  deposited  as  collateral 
but  the  identical  certificate  is  to  be  returned  on  the  payment  of 
the  principal  obligation,  the  statute  does  not  begin  to  run 
against  an  action  to  recover  the  stock  until  after  a  demand  for 
the  return  of  the  stock.  Brown  v.  Bronson,  93  App.  Div.  312, 
318,  87  N.  Y.  Supp.  872. 

494,  n.  346.  An  action  by  a  ward  to  recover  a  money  judg- 
ment against  the  executors  of  her  general  guardian  must  be 
brought  within  sis  years  after  the  ward  comes  of  age,  without 
regard  to  when  the  ward  learned  that  the  guardian  had  re- 
ceived money  not  accounted  for.  Libby  v.  Van  Derzee,  80  App. 
Div.  494,  81  N.  Y.  Supp.  139.  Limitations  begin  to  run  against 
a  cause  of  action  to  recover  damages  for  the  failure  of  an  attor- 
ney to  record  a  mortgage  as  he  had  agreed  to,  from  the  date  of 
the  breach  of  the  agreement,  and  not  from  the  date  of  the  dis- 
covery thereof.  Crowley  v.  Johnston,  96  App.  Div.  319,  89  N. 
Y.  Supp.  258. 

494,  n.  349.  See,  also,  Perry  v.  Williams,  40  Misc.  57,  81 
N.  Y.  Supp.  204.  The  statute  does  not  commence  to  run  when 
the  instrument  is  delivered.  Brennan  v.  Thompson,  46  Misc. 
317,  94  N.  Y.  Supp.  684. 

495,  n.  352.  The  rule  applies  to  an  action  to  recover  lands 
and  for  an  accounting  where  an  administrator  permitted  lands 
of  the  estate  to  be  sold  for  taxes,  though  he  had  personalty  in 
hand  to  pay  the  taxes,  and  himself  bid  them  in  and  took  a  tax 
title  in  his  own  name.  Kelly  v.  Pratt,  41  Misc.  31,  83  N.  Y. 
Supp.  636.  But  the  rule  does  not  apply  to  an  action  by  the  own- 
ers of  the  equity  of  redemption  to  avoid  a  foreclosure  deed,  in 
which  the  guardian  ad  litem  of  infant  defendants  was  the  pur- 
chaser, and  to  declare  the  trust.  Dugan  v.  Sharkey,  89  App. 
Div.  161,  85  N.  Y.  Supp.  778. 


4078  APPENDIX. 

496,  11.  356.  Slayback  v.  Raymond,  93  App.  Div.  326,  87  N. 
Y.  Supp.  931. 

497,  n.  361.     Meehan  v.  Figliuolo,  88  N.  Y.  Supp.  920. 

500,  ii.  377.  See,  also,  Brown  v.  Bronson,  93  App.  Div.  312, 
316,  87  N.  Y.  Supp.  872. 

505,  n.  406.  This  Code  rule  does  not  apply  to  an  action  for 
dower.    Wetyen  v.  Fick,  178  N.  Y.  223. 

506,  n.  416.  Lawrence  v.  Hogue,  105  App.  Div.  247,  93  N.  Y. 
Supp.  998. 

510,  n.  434.  This  Code  rule  applies  to  an  action  to  foreclose 
a  mechanic's  lien,  though  the  period  of  limitations  is  governed 
by  the  lien  law.  Conolly  v.  Hyams,  176  N.  Y.  403.  It  also  ap- 
plies to  special  procedings.  So  held  where  the  relator  mistook 
his  remedy  in  bringing  mandamus  instead  of  certiorari.  People 
ex  rel.  McCabe  v.  Snedeker,  106  App.  Div.  89,  94  N.  Y.  Supp. 
319. 

511,  n.  440.  This  applies  to  a  special  proceeding  brought  in 
behalf  of  an  infant.  Matter  of  Pond's  Estate,  40  Misc.  66,  81 
N.  Y.  Supp.  249. 

514.  Where  the  only  change  effected  by  an  amended  sum- 
mons and  complaint  was  to  correct  the  defect  in  the  designa- 
tion of  the  defendant  company  by  striking  out  the  words  "as 
substituted  trustee,"  etc.,  the  action  must  be  considered  to 
have  been  commenced  when  the  original  summons  was  served. 
Boyd  v.  United  States  Mortg.  &  Trust  Co.,  94  App.  Div.  413, 
88  N.  Y.  Supp.  289. 

519,  n.  490.  But  it  is  not  only  the  right,  but  the  duty,  of  an 
executor,  to  pay  the  debts  of  the  decedent,  and  his  acknowledg- 
ment thereof,  by  making  payments  thereon  from  time  to  time, 
prevents  the  running  of  limitations  where  it  has  not  run  before 
such  payments  are  made.    Holly  v.  Gibbons,  176  N.  Y.  520. 

521.  There  is  a  sufficient  acknowledgment  and  promise 
where  defendant  sent  plaintiff's  intestate  a  bill  for  services  ren- 
dered to  a  third  person,  and  intestate  replied  that  the  matter 
would  have  his  earliest  attention,  and  that  he  considered  him- 
self responsible  for  the  bill.  Serrell  v.  Forbes,  106  App.  Div. 
482,  94  N.  Y.  Supp.  805.  But  merely  "looking  over"  an  ac- 
count does  not  remove  the  bar.  Matter  of  Goss,  98  App.  Div. 
489,  90  N.  Y.  Supp.  769. 


APPENDIX.  4079 

521,  n.  497.  An  offer  to  give  "a  due  bill  as  an  acknowledg- 
ment" is  sufficient.  Benedict  v.  Slocum,  95  App.  Div.  602,  88 
N.  Y.  Supp.  1052. 

522,  n.  511.  Kahrs  v.  City  of  N.  Y.,  98  App.  Div.  233,  90  N. 
Y.  Supp.  793. 

523,  n.  518.  Where  plaintiff  bought  shares  of  stock  for  de- 
fendant and  paid  in  cash  the  market  value,  a  letter,  in  reply 
to  a  demand  for  payment  of  the  indebtedness,  stating,  inter 
alia,  that  ' '  you  may  rest  assured  that  I  will  pay  you  every  dol- 
lar I  owe  you  within  a  short  time.  I  am  largely  interested  in  a 
transaction  at  present;  when  that  is  closed  up  you  will  surely 
hear  from  me  substantially,"  is  sufficient  as  a  new  promise. 
Levy  v.  Popper,  106  App.  Div.  394,  94  N.  Y.  Supp.  905. 

526,  §  519.  The  test  is  whether  the  facts  would  support  a 
plea  of  payment.  A  credit,  in  the  debtor's  books,  to  an  account 
of  a  third  person,  not  shown  to  have  been  authorized  by  the 
creditor,  or  to  have  been  acquiesced  in  by  him,  is  not  such  a 
payment  as  will  bar  the  running  of  the  statute.  Kirkpatrick  v. 
Goldsmith,  81  App.  Div.  265,  80  N.  Y.  Supp.  835. 

526,  n.  542.  Drawing  an  order  with  instructions  to  "charge 
same  to  my  account"  does  revive  outlawed  claims  where  a 
claim  not  outlawed  existed  to  which  claim  the  payment  might 
be  applied.  Shafer  v.  Pratt,  79  App.  Div.  447,  80  N.  Y.  Supp. 
109. 

527,  n.  545.  See,  also,  Jefferson  County  Nat.  Bank  v.  Dewey, 
181  N.  Y.  98,  106.  In  this  case  the  indorsers  of  a  note  paid 
the  balance  to  the  payee  after  a  judgment  against  the  maker 
and  a  partial  recovery  against  the  maker  by  the  means  of  a 
creditor's  suit.  The  note  was  delivered  to  the  indorsers  pending 
an  appeal  in  the  creditor's  suit  which  resulted  in  the  payee  be- 
ing required  to  refund  the  amount  received  in  the  creditor's 
action.  It  was  held  that  the  payments  made  by  the  indorsers 
were  part  payments  so  as  to  enable  the  payee  to  sue  them  for 
the  balance  remaining  due  where  the  action  was  brought  within 
six  years  after  such  payments. 

528,  n.  548.  An  unauthorized  payment  by  the  widow  on  a 
mortgage  indebtedness  upon  property  in  which  she  has  but  a 
homestead  and  dower  interest  will  not  operate  to  remove  the 
bar  of  the  statute  of  limitations  from  the   indebtedness,   as 


K)80  APPENDIX. 

againsl  the  hens  who  own  the  fee.  Nickell  v.  Tracy,  100  App. 
Div.  80,  91  N.  V.  Supp.  287. 

532.  An  unsigned  indorsement  made  after  a  note  is  outlawed 
is  not  sufficient  to  show  part  payment  where  the  indorsement 
is  not  in  the  handwriting  of  the  maker  nor  shown  to  have  been 
made  with  his  privity.  Matter  of  Salisbury,  41  Misc.  274,  84 
N.  Y.  Supp.  215. 

535,  n.  3.  Allegations  in  a  verified  pleading,  one  of  the 
moving  papers,  are  to  be  treated  as  if  contained  in  a  separate 
affidavit.  Newman  v.  West,  101  App.  Div.  288,  91  N.  Y.  Supp. 
740. 

538,  n.  22.  Where  not  amended,  affidavit  is  a  nullity.  Frees 
v.  Blyth,  99  App.  Div.  541,  91  N.  Y.  Supp.  103. 

542.  Where  the  complaint  is  one  of  the  moving  papers,  a 
verification  on  information  and  belief,  without  stating  the 
sources  thereof,  is  of  no  effect.  Samuel  Cupples  Envelope  Co. 
v.  Lackner,  99  App.  Div.  231,  90  N.  Y.  Supp.  954. 

546,  §  531.  Of  course  if  the  facts  are  peculiarly  within  the 
knowledge  of  the  attorney,  he  should  make  the  affidavit,  rather 
than  the  client.  Kent  v.  Aetna  Ins.  Co.,  88  App.  Div.  518,  85 
N.  Y.  Supp.  164. 

546,  n  66.  A  &  S.  Henry  &  Co.  v.  Talcott,  89  App.  Div.  76, 
85  N.  Y.  Supp.  98 ;  Treadwell  v.  Clark,  45  Misc.  268,  92  N.  Y. 
Supp.  166.  It  is  no  excuse  that  the  client  is  a  nonresident. 
Fox  v.  Peacock,  97  App.  Div.  500,  90  N.  Y.  Supp.  137. 

549,  n.  84.  But  an  affidavit  taken  before  an  attorney  of 
record  in  the  action  is  not  "void."  Baumeister  v.  Demuth,  84 
App.  Div.  394,  398,  82  N.  Y.  Supp.  831. 

550,  §  534.  AVhile  affidavits  may  be  withdrawn  and  new 
ones  substituted,  there  is  no  authority  in  the  court  to  amend 
an  affidavit.  McNamara  v.  Wallace,  97  App.  Div.  73,  76,  89  N. 
Y.  Supp.  591. 

559,  n.  131.  Lawton  v.  Kiel,  50  Barb.  30,  which  does  not 
agree  with  the  proposition  stated  in  the  text,  is  followed  in 
Rosenblatt  v.  Jersey  Novelty  Co.,  45  Misc.  59,  90  N.  Y.  Supp. 
816,  which  holds  that  the  certificates  to  authenticate  the  notary's 
signature,  though  omitted  altogether,  may  be  supplied  to  per- 
fect moving  papers. 

562.     An  affidavit  that  "deponent  has  fully  and  fairly  stated 


APPENDIX.  4081 

his  defense  to  said  action  and  all  the  facts  relative  thereto  to  his 
counsel  is  sufficient."  "Thereto"  refers  to  "action,"  and  "ac- 
tion" is  synonymous  to  "case,"  so  that  the  clause  should  be  con- 
strued to  read,  "and  all  the  facts  relative  to  the  'action' — i.  e., 
'  case. '  ' '  Larocque  v.  Conhaim,  45  Misc.  234,  92  N.  Y.  Supp.  99. 
570,  n.  10.  In  Lee  v.  Winans,  99  App.  Div.  297,  90  N.  Y. 
Supp.  960,  it  was  held  improper  to  grant  a  motion  on  affidavit 
where  the  Code  required  a  petition. 

575,  n.  43.  Matter  of  National  Gramaphone  Corp.  Directors, 
82  App.  Div.  593,  81  N.  Y.  Supp.  853. 

576,  n.  51.  Facts  alleged  in  the  moving  affidavits  cannot  be 
considered  contradicted  by  statements  of  conclusions  in  coun- 
ter-affidavits. Boyle  v.  Standard  Oil  Co.,  102  App.  Div.  622, 
92  N.  Y.  Supp.  677. 

577,  n.  60.  Chapins  v.  Long,  77  App.  Div.  272,  274,  78  N.  Y. 
Supp.  1046.  That  defendant,  after  service  of  papers  on  a 
motion  to  require  plaintiff  to  pay  the  costs  of  a  former  action 
against  another  defendant,  procured  an  assignment  of  the  judg- 
ment for  such  costs  from  the  judgment  creditor,  is  not  ground 
for  granting  the  motion.  Tanzsheim  v.  Brooklyn,  Q.  C.  &  S.  R. 
Co.,  106  App.  Div.  233,  94  N.  Y.  Supp.  534.  If  new  facts  are 
discovered  after  the  motion  is  made,  the  court  may,  in  its  dis- 
cretion, postpone  the  hearing  and  allow  others  to  be  served. 
Northrup  v.  Village  of  Sidney,  97  App.  Div.  271,  274,  90  N.  Y. 
Supp.  23. 

578,  n.  70.  This  Code  provision  applies  equally  well  to  mo- 
tions after  judgment,  such  as  a  motion  for  a  new  trial.  O'Con- 
nor v.  McLaughlin,  80  App.  Div.  305,  80  N.  Y.  Supp.  741. 

578,  n.  73.  See,  also,  People  ex  rel.  Tuell  v.  Paine,  92  App. 
Div.  303,  86  N.  Y.  Supp.  1109,  where  the  motion  was  denied 
in  contempt  proceedings  because  the  testimony  could  be  taken 
directly  in  the  contempt  proceeding.  "It  must  be  made  to 
appear,  first,  that  the  person  sought  to  be  examined  can,  and,  if 
compelled,  will,  swear  to  the  facts  desired;  and,  secondly,  that 
the  facts  to  which  he  can  swear  are  relevant  to  the  motion.  The 
proceeding  is  not  intended  to  be  used  as  one  for  the  general  ex- 
amination of  witnesses,  and  no  good  purpose  is  to  be  served  by 
putting  questions  which  will  elicit  denials  of  the  facts  sought 
to  be  established."  If  it  is  shown  that  the  parties  will  not 
N.  Y.  Prac—  256. 


40S2  APPENDIX. 

swear  to  the  facts  which  the  moving  party  seeks  to  establish 
by  their  depositions,  because  they  claim  that  such  facts  do  not 
exist,  the  motion  should  be  refused.  Calvet-Rogniat  v.  Mer- 
cantile Trust  Co.,  46  Misc.  20,  93  N.  Y.  Supp.  241. 

583.  Rule  37  of  the  General  Rules  of  Practice  which  pro- 
vides that  "all  motions  made  at  special  or  trial  terms  shall  be 
brought  before  the  court  on  notice,"  followed  in  Delahunty  v. 
Canfield,  106  App.  Div.  386,  94  N.  Y.  Supp.  815. 

585,  n.  115.  Van  Wickle  v.  Weaver  Coal  &  Coke  Co.,  88 
App.  Div.  603,  85  N.  Y.  Supp.  82;  Railings  v.  McDonald,  76 
App.  Div.  116,  78  N.  Y.  Supp.  1040.  Want  of  jurisdiction  is 
not  an  irregularity  which  must  be  specified  in  the  notice  of 
motion.  Armstrong  v.  Loveland,  99  App.  Div.  28,  90  N.  Y. 
Supp.  711.  The  rule  does  not  apply  where  the  order  is  based 
on  the  merits.  Norden  v.  Duke,  106  App.  Div.  514,  94  N.  Y. 
Supp.  878. 

590,  §  584.  An  order  to  show  cause  cannot  be  made  in  a 
proceeding  not  yet  pending  and  over  which  the  court  has  not 
acquired  jurisdiction.  Matter  of  Quick,  92  App.  Div.  131,  87 
N.  Y.  Supp.  316. 

591,  n.  155.  Schiller  v.  Weinstein,  45  Misc.  591,  91  N.  Y. 
Supp.  76 ;  Stryker  v.  Churchill,  39  Misc.  578,  80  N.  Y.  Supp.  588 ; 
Sanger  v.  Connor,  95  App.  Div.  521,  88  N.  Y.  Supp.  1054;  Cole 
v.  Smith,  84  App.  Div.  500,  82  N.  Y.  Supp.  982.  The  objection 
cannot,  however,  be  first  urged  on  appeal.  Austrian  B.  F.  Co. 
v.  Wright,  43  Misc.  616,  88  N.  Y.  Supp.  142.  The  omission  is 
ground  for  denying  the  order  sought,  where  raised  on  the  re- 
turn of  the  order  to  show  cause  and  before  the  hearing.  Sanger 
v.  Connor,  95  App.  Div.  521,  88  N.  Y.  Supp.  1054.  However,  it 
is  no  objection  to  a  motion  made  on  behalf  of  the  defendant 
upon  the  return  of  an  order  requiring  the  plaintiff  to  show 
cause  why  an  order  should  not  be  made  determining  and  declar- 
ing that  the  defendant  is  not  in  default  for  failure  to  appear  and 
answer  herein,  or,  should  it  be  determined  that  defendant  is  in 
default,  then  opening  such  default  and  allowing  the  defendant 
to  serve  an  amended  answer  that  "the  affidavit  upon  which  the 
order  to  show  cause  was  granted  does  not  state  the  time  ap- 
pointed for  holding  the  next  trial  term  in  this  county,"  since 
the  very  purpose  of  the  motion  is  to  determine  whether  the  ac- 


APPENDIX .  4083 

tion  is  at  issue.     Sweeney  v.  O'Dwyer,  45  Misc.  43,  90  N.  Y. 
Supp.  806. 

596,  n.  186.  Delahunty  v.  Canfield,  106  App.  Div.  386,  94  N. 
Y.  Supp.  815. 

597,  §  593.  If  the  pleading,  concerning  which  the  motion  is 
made,  is  served  by  mail,  the  party  served  has  double  time  to 
make  any  motion  relating  to  such  pleading.  Borsuk  v.  Blauner, 
93  App.  Div.  306,  87  N.  Y.  Supp.  851. 

605,  n.  243.  In  re  Schlotterer,  105  App.  Div.  115,  93  N.  Y. 
Supp.  895.  The  special  term  of  the  supreme  court  cannot  mod- 
ify an  order  made  by  a  justice  of  the  supreme  court,  out  of 
court,  in  an  action  pending  in  the  county  court.  Edwards  v. 
Shreve,  83  App.  Div.  165,  82  N.  Y.  Supp.  514. 

605,  n.  246.  Matter  of  White,  101  App.  Div.  172,  91  N.  Y. 
Supp.  513. 

609,  §  605.  The  motion  cannot  be  determined  on  facts  occur- 
ring after  the  motion  papers  are  served.  Tanzsheim  v.  Brook- 
lyn, Q.  C.  &  S.  R.  Co.,  106  App.  Div.  233,  94  N.  Y.  Supp.  534. 

612,  n.  293.  Schiller  v.  Weinstein,  45  Misc.  591,  91  N.  Y. 
Supp.  76. 

613,  n.  298.  Headdings  v.  Gavette,  86  App.  Div.  592,  83  N.  Y. 
Supp.  1017.  But  if  unlawful  relief  is  sought,  it  will  not  be 
granted  even  though  there  is  no  opposition.  It  follows  that  the 
failure  of  the  opposing  party  to  appear  on  the  return  day  does 
not  waive  his  right  to  move,  on  excusing  his  default,  to  amend 
the  order  by  striking  out  a  provision  improperly  inserted.  Peo- 
ple ex  rel.  N.  Y.  Realty  Corp.  v.  Miller,  92  App.  Div.  116,  87  N. 
Y.  Supp.  341. 

619,  n.  19.  Matter  of  Munson,  95  App.  Div.  23,  88  N.  Y. 
Supp.  509.  See,  also  Edwards  v.  Shreve,  83  App.  Div.  165,  82 
N.  Y.  Supp.  514. 

619,  n.  22.  Lawson  v.  Speer,  91  App.  Div.  411,  86  N.  Y. 
Supp.  915.  That  caption  of  order  is  that  of  a  judge's  order 
instead  of  a  court  order  is  not  fatal,  see  Lawson  v.  Speer,  91 
App.  Div.  411,  86  N.  Y.  Supp.  915. 

620,  n.  28.  If  the  order  does  not  specify  all  the  motion  pa- 
pers, relief  will  be  granted  on  a  motion  for  a  resettlement  of  the 
order.  Davis  v.  Reflex  Camera  Co.,  99  App.  Div.  567,  90  N.  Y. 
Supp.  877. 


4084  APPENDIX. 

627.  Service  is  necessary  to  stay  proceedings  where  costs 
are  not  paid.  Sire  v.  Slmbert,  93  App.  Div.  324,  87  N.  Y.  Supp. 
891. 

639,  n.  149.  Garner  v.  Hellraan,  47  Misc.  336,  93  N.  Y.  Supp. 
431.     Tracy  v.  Falvey,  102  App.  Div.  585,  92  N.  Y.  Supp.  625. 

640.  A  motion  to  vacate  or  reduce  a  judgment  is  not  a  re- 
newal of  a  motion  to  open  the  default.  Sutherland  v.  Mead, 
80  App.  Div.  103,  106,  80  N.  Y.  Supp.  504. 

643,  n.  178.  Klipstein  &  Co.  v.  Marchmedt  is  reported  in  39 
Misc.  794. 

644.  A  party  should  not  be  permitted  to  renew  a  motion, 
after  a  considerable  expenditure  by  the  opposing  party,  with- 
out payment  of  the  costs  by  the  unsuccessful  party,  especially 
where  the  merits  of  the  application  were  not  passed  on  owing 
to  deficiencies  in  the  moving  papers.  Wasserman  v.  Benjamin, 
91  App.  Div.  547,  86  N.  Y.  Supp.  1022. 

644,  n.  189.  Murphy  v.  Kelly,  89  App.  Div.  619,  85  N.  Y. 
Supp.  912. 

644,  §  639.  A  motion  for  a  reargument  should  not  be  granted 
after  the  time  to  appeal  has  expired.  Klipstein  &  Co.  v.  March- 
medt, 39  Misc.  794,  81  N.  Y.  Supp.  317. 

648,  n.  12.  In  a  dissenting  opinion,  it  is  held  that  this  rule 
as  to  the  failure  to  return  papers  only  applies  to  papers  that 
can  be  properly  served  in  the  due  course  of  procedure,  and  has 
no  reference  to  an  unauthorized  and  void  notice.  Honsinger  v. 
Union  Carriage  &  Gear  Co.,  175  N.  Y.  229,  234. 

652,  n.  35.  Section  74  of  the  Executive  Law,  added  by 
amendment  in  1893,  abolished  the  state  paper  and  provided  that 
notices  to  be  published  in  the  state  paper  be  published  in  the 
county  of  the  place  of  trial  in  a  newspaper  to  be  designated  by 
the  court  or  judge. 

654,  n.  1.  Personal  service  of  the  original  process  claimed 
to  be  disobeyed  is  necessary  to  bring  a  party  into  contempt. 
Goldie  v.  Goldie,  77  App.  Div.  12,  16,  79  N.  Y.  Supp.  268. 

655,  n.  10.  The  service  should  be  personal  where  the  paper 
is  to  bring  a  party  into  contempt.  Goldie  v.  Goldie,  77  App. 
Div.  12,  79  N.  Y.  Supp.  268. 

658,  n.  37.     It  is  not  sufficient  to  drop  in  the  office  letter  box 


APPENDIX.  4085 

of  an  attorney  a  paper  not  enclosed  in  a  wrapper  and  not  di- 
rected to  him.  Fitzgerald  v.  Dakin,  101  App.  Div.  261,  91  N. 
Y.  Snpp.  1003. 

661,  n.  62.  Bnt  if  the  attorney  to  whom  the  papers  are  sent 
pays  the  amount  of  excess  postage  and  receives  the  package 
containing  the  papers,  he  cannot  return  them,  after  inspection, 
as  irregularly  served.  Appeal  Printing  Co.  v.  Sherman,  99 
App.  Div.  533,  91  N.  Y.  Supp.  178. 

663,  n.  70.  Service  of  a  pleading  by  mail  gives  forty  days  to 
move  to  make  it  more  definite  and  certain.  Borsuk  v.  Blauner, 
93  App.  Div.  306,  87  N.  Y.  Supp.  851.  Service  of  an  answer  by 
mail  gives  the  plaintiff  forty  days,  i.  e.,  double  time,  to  serve 
an  amended  complaint  as  of  course.  Bucklin  v.  Buffalo,  A.  & 
A.  R.  Co.,  11  Misc.  557,  85  N.  Y.  Supp.  114.  Service  of  a  judg- 
ment or  order  by  mail  doubles  the  time  allowed  to  move,  under 
section  721  of  the  Code,  to  set  aside  the  judgment*  or  order  be- 
cause of  mistake,  inadvertence,  etc.  Atkinson  v.  Abraham,  78 
App.  Div.  489,  79  N.  Y.  Supp.  680. 

684,  n.  95.  The  proposition  that  "where  no  adverse  decision 
has  been  made,  the  parties  to  an  undertaking  may,  in  good 
faith,  agree  on  a  recovery  which  shall  be  binding  on  the 
surety,"  while  supported  by  the  case  cited,  is  a  too  broad  state- 
ment of  the  law,  at  least  in  so  far  as  undertakings  on  appeal 
are  concerned,  since  Foo  Long  v.  American  Surety  Co.,  146  N. 
Y.  251,  256,  holds  that  a  pro  forma  affirmance  of  a  judgment  on 
appeal  based  solely  on  the  stipulation  of  the  parties  is  not  such 
an  affirmance  as  will  bind  the  sureties  on  an  appeal  bond. 

684,  §  677.  Section  812  of  the  Code  contemplates  two  pro- 
ceedings by  a  surety.  The  one  is  ex  parte  as  to  creditors,  for 
the  release  of  the  surety  from  liability  for  the  "future"  acts 
or  omissions  of  his  principal ;  the  other  is  on  notice  to  all  par- 
ties interested  for  release  from  all  acts  and  omissions  past  and 
future.  Siebert  v.  Milbank,  95  App.  Div.  566,  88  N.  Y.  Supp. 
993. 

686,  n.  107.  O'Connor  v.  Walsh,  83  App.  Div.  179,  183,  82  N. 
Y.  Supp.  499. 

688,  n.  122.  The  obtaining  of  leave  to  sue  is  an  essential  fact 
which  must  be  alleged  in  the  complaint.  Goldstein  v.  Michel- 
son,  45  Misc.  601,  91  N.  Y.  Supp.  33. 


4086  APPENDIX. 

692,  n.  3.  Section  1778  of  the  Code  presents  an  exception  to 
this  rule  in  that  it  provides  that  the  time  to  answer  or  demur 
can  be  extended  only  by  the  court,  on  notice,  in  an  action 
against  a  corporation  to  recover  damages  for  the  nonpayment 
of  a  note,  or  other  evidence  of  debt,  for  the  absolute  payment 
of  money,  on  demand,  or  at  a  particular  time. 

695.  An  action  is  not  begun  "within"  twenty  years  where 
the  cause  of  action  arose  June  27,  1884,  and  the  summons  was 
delivered  for  service  June  27,  1904,  notwithstanding  that 
June  26,  1904,  came  on  Sunday.  Vose  v.  Kuhn,  45  Misc.  455,  92 
N.  Y.  Supp.  34.  Sunday  is  to  be  excluded  when  it  is  the  last 
day  in  a  period  of  days  and  not  when  it  is  the  last  day  in  a 
period  of  years.  Benoit  v.  New  York  Cent.  &  H.  R.  R.  Co.,  94 
App.  Div.  24,  28,  87  N.  Y.  Supp.  951. 

696,  n.  21.  Where  notice  of  an  injury  is  required  to  be  given 
within  one  month,  and  the  injury  occurs  on  the  tenth,  the  com- 
putation is  from  the  tenth  so  that  the  notice  must  be  served  on 
or  before  the  tenth  of  the  succeeding  month."  Biggs  v.  City  of 
Geneva,  100  App.  Div.  25,  90  N.  Y.  Supp.  858. 

696,  n.  22.  Benoit  v.  New  York  Cent.  &  H.  R.  R.  Co.,  94  App. 
Div.  24,  87  N.  Y.  Supp.  951;  Vose  v.  Kuhn,  45  Misc.  455,  92 
N.  Y.  Supp.  34. 

708,  nn.  49,  50.  That  the  appellate  division  may,  in  certain 
cases,  exercise  its  own  discretion,  on  appeal,  though  no  actual 
abuse  of  discretion  in  the  court  below  is  found,  see  Lawson  v. 
Hilton,  89  App.  Div.  303,  85  N.  Y.  Supp.  863. 

717,  n.  47.  See,  also,  Goldberg  v.  Markswitz,  94  App.  Div. 
237,  87  N.  Y.  Supp.  1045. 

718,  n.  53.  Effect  of  service  of  complaint,  subsequent  to  serv- 
ice of  summons,  stating  a  different  place  of  trial,  see  post,  919 
nn.  6,  7. 

729,  §  709.     See,  also  post,  881,  n.  463. 

730,  n.  18.  Kinsey  v.  American  Hardwood  Mfg.  Co.,  94  N.  Y. 
Supp.  455. 

734,  n.  55.  Proof  by  affidavit  that  a  warrant  of  attachment 
has  been  granted  is  necessary.  Wilson  v.  Lange,  40  Misc.  676, 
83  N.  Y.  Supp.  180. 

735,  §  717.     Service  in  a  crowded  depot,  where  reporters  and 


APPENDIX.  4087 

others  were  trying  to  reach  defendant  who  was  handcuffed  to 
a  detective  and  carried  a  bag  in  the  other  hand,  by  thrusting 
the  paper  in  the  face  of  the  prisoner  which  act  was  forcibly 
repulsed  by  the  detective,  is  insufficient,  where  defendant  did 
not  know  that  he  was  being  served  and  the  summons  fell  to  the 
floor  and  was  not  picked  up.  Anderson  v.  Abeel,  96  App.  Div. 
370,  89  N.  Y.  Supp.  254.  The  fact  that  the  summons  and  com- 
plaint is  found  upon  the  floor  of  a  house  or  in  the  street  by  a 
defendant  in  an  action,  or  is  delivered  to  a  defendant  in  the 
action  by  one  so  finding  it,  is  not  the  service  that  the  Code  re- 
quires, and  defendant  is  under  no  obligation  to  appear  and  an- 
swer because  a  copy  of  the  summons  in  an  action  in  which  he 
is  named  as  a  defendant  comes  incidentally  into  his  possession, 
when  there  is  no  delivery  of  the  summons  as  a  service  upon  him. 
Under  such  circumstances  the  defendant  is  justified  in  waiting 
until  the  judgment  is  sought  to  be  enforced.  The  question  of 
laches  cannot  be  considered,  as  the  defendant  has  the  legal 
right  to  have  the  judgment  set  aside  at  any  time  upon  it  appear- 
ing that  it  had  been  entered  without  actual  service  of  the  sum- 
mons. O'Connell  v.  Gallagher,  103  App.  Div.  61,  93  N.  Y.  Supp. 
643. 

739,  n.  92.  The  court  may  go  further  than  merely  appoint- 
ing a  person  on  whom  to  serve  a  copy  of  the  summons,  by  mak- 
ing the  provisions  of  the  order  broad  enough  to  enable  the 
person  appointed  to  look  after  the  interests  of  the  defendant  at 
every  stage  of  the  action.  American  Mortg.  Co.  v.  Dewey,  106 
App.  Div.  389,  94  N.  Y.  Supp.  808. 

742.  The  fact  that  the  service  of  the  summons  and  the  copy 
served  comes  to  the  attention  of  the  corporation  served,  in  due 
time,  does  not  validate  a  service  on  one  not  enumerated  in  the 
Code  as  a  person  on  whom  service  may  be  made.  Eisenhofer  v. 
New  Yorker  Zeitung  Pub.  &  Print.  Co.,  91  App.  Div.  94,  .86  N. 
Y.  Supp.  438.  A  mere  clerk  who  receives  payment  of  a  bill  due 
the  corporation  is  not  the  cashier  who  may  be  served.  "The" 
cashier  is  the  one  who  has  charge  of  the  funds  of  the  corpora- 
tion and  has  the  right  to  take  charge  thereof  to  the  exclusion  of 
every  person.    Id. 

743,  n.  123.     Yorkville  Bank  v.  Henry  Zeltner  Brewing  Co., 


4088  APPENDIX. 

80  App.  Div.  578,  80  N.  Y.  Supp.  839.  It  seems,  however,  that 
if  the  resignation  is  made  in  bad  faith  to  throw  the  company 
into  the  hands  of  a  receiver,  and  is  held  by  the  courts  to  be  in- 
effective, the  service  is  good.  Zeltner  v.  Henry  Zeltner  Brew- 
ing Co.,  85  App.  Div.  387,  83  N.  Y.  Supp.  366. 

745,  n.  133.  A  different  rule  prevails  in  the  federal  courts 
in  construing  the  New  York  Code  provisions.  Goldey  v.  Morn- 
ing Xews,  156  U.  S.  518,  followed  in  Conley  v.  Mathieson  Alkali 
Works,  190  U.  S.  406. 

746,  n.  138.  The  agency  to  accept  service,  if  shown,  will 
suffice,  whether  the  corporation  is  doing  business  within  the 
state  at  the  time  or  not.  Johnston  v.  Mutual  Reserve  Life  Ins. 
Co.,  45  Misc.  316,  90  N.  Y.  Supp.  539. 

747,  n.  143.  The  power  to  accept  service  is  not  revocable  so 
as  to  affect  any  outstanding  liabilities  within  the  state  upon 
contracts  made  while  the  corporation  was  doing  business ;  the 
statute  of  1899  is  to  be  read  as  a  mere  continuation  of  the  laws 
in  force  when  a  contract  was  made,  which  required  the  designa- 
tion of  an  agent  to  accept  service;  and  this  requirement  is 
within  the  power  of  the  state  to  impose  as  a  condition  to  the 
permission  to  a  foreign  corporation  to  do  business  within  its 
borders.  Woodward  v.  Mutual  Reserve  Life  Ins.  Co.,  178  N.  Y. 
485;  Johnston  v.  Mutual  Reserve  Life  Ins.  Co.,  45  Misc.  316, 
90  N.  Y.  Supp.  539. 

747,  n.  146.  Doherty  v.  Evening  Journal  Ass'n,  98  App.  Div. 
136,  90  N.  Y.  Supp.  671. 

747,  next  to  last  sentence.  It  is  essential  that  the  foreign 
corporation  should  have  property  within  this  state,  or  that  the 
cause  of  action  arose  here,  in  order  to  warrant  service  upon  a 
cashier,  director,  or  managing  agent.  Doherty  v.  Evening 
Journal  Ass'n,  98  App.  Div.  136,  90  N.  Y.  Supp.  671. 

748,  n.  149.    See,  ante,  742. 

749,  A  person  who  collects  and  remits  the  dues  of  members 
of  a  fraternal  insurance  association  is  not  a  managing  agent 
thereof.  Moore  v.  Monumental  Mut.  Life  Ins.  Co.,  77  App. 
Div.  209,  78  N.  Y.  Supp.  1009. 

749,  n.  160.  Fontana  v.  Post  Printing  &  Pub.  Co.,  is  offi- 
cially reported  in  87  App.  Div.  233. 


APPENDIX.  4089 

751.  It  is  questionable  whether  substituted  service  is  allow- 
able in  an  action  for  a  divorce.  Maiello  v.  Maiello,  42  Misc. 
266,  86  X.  Y.  Supp.  543. 

752.  In  an  action  for  a  divorce,  a  substituted  service  should 
not  be  permitted,  in  any  event,  unless  the  moving  papers  show 
that  service  cannot  be  made  by  publication.  Maiello  v.  Maiello, 
42  Misc.  266,  86  N.  Y.  Supp.  543. 

753.  n.  14.  Maiello  v.  Maiello,  42  Misc.  266,  86  N.  Y.  Supp. 
543.  The  moving  papers  must  show  that  the  defendant  is  a 
resident.    Lynch  v.  Eustis,  85  N.  Y.  Supp.  1063. 

761,  n.  15.  This  applies  to  an  action  for  dower  Avhere  there 
are  no  tenants  or  occupants  within  the  state.  Wetyen  v.  Fick, 
178  N.  Y.  223,  233. 

767,  n.  53.  There  must  be  some  competent  proof  of  non- 
residence.  Empire  City  Sav.  Bank  v.  Silleck,  98  App.  Div.  139, 
90  N.  Y.  Supp.  561. 

767,  n.  55.  The  certificate  of  a  sheriff  that  he  has  used  due 
diligence,  where  the  certificate  is  not  made  a  part  of,  or  re- 
ferred to,  in  the  moving  papers,  is  insufficient.  Empire  City 
Sav.  Bank  v.  Silleck,  98  App.  Div.  139,  90  N.  Y.  Supp.  561. 

768,  n.  60.  Kennedy  v.  Lamb,  182  X.  Y.  228,  which  reverses 
102  App.  Div.  429,  92  N.  Y.  Supp.  385.  In  this  case  the  affi- 
davit showed  that  the  defendant  resided  in  New  Jersey  and 
stated  that  "the  plaintiff  will  be  unable  with  due  diligence  to 
make  personal  service  of  the  summons"  but  showed  no  attempt 
to  make  personal  service  nor  excuse  for  not  trying  except  that 
defendant  resided  in  New  Jersey.  It  was  held  that  no  juris- 
diction was  conferred  on  the  judge  to  grant  the  order,  which 
could  be  collaterally  attacked.  In  such  a  case,  is  not  sufficient 
to  merely  follow  the  words  of  the  statute,  but  the  facts  must  be 
stated  to  show  the  efforts  made  to  personally  serve  the  sum- 
mons within  the  state. 

781,  §  756.  Section  1557,  subdivision  1,  of  the  Code  expressly 
provides  that  so  much  of  section  445  as  requires  the  court  to 
allow  a  defendant  to  defend  after  final  judgment  does  not  apply 
to  an  action  for  partition. 

794,  n.  4.  The  objection  cannot  be  raised  by  answer.  Nell  is 
v.  Rowles,  41  Misc.  313,  84  N.  Y.  Supp.  753. 


4090  APPENDIX. 

796,  n.  20.  Where  one,  by  mistake  but  with  notice  which 
should  have  put  him  on  inquiry,  sues  an  individual  as  such 
when  he  should  have  sued  a  corporation  of  which  the  person 
sued  was  the  president,  an  amendment  will  not  be  allowed, 
though  the  statute  of  limitations  has,  in  the  interim,  become  a 
bar  to  an  action  against  the  corporation.  Licausi  v.  Ashworth, 
78  App.  Div.  486,  79  N.  Y.  Supp.  631. 

797,  n.  26.  Prior  to  the  trial,  the  words  "as  substituted  trus- 
tee under  the  will  of  *  *  *  deceased,"  after  the  name  of 
defendant,  may  be  allowed  to  be  stricken  out  of  the  title  of  the 
summons  and  complaint,  notwithstanding  the  statute  of  lim- 
itations would  bar  a  new  action  against  the  defendant  in  its 
individual  capacity.  Boyd  v.  United  States  Mort.  &  Trust  Co., 
84  App.  Div.  466,  82  N.  Y.  Supp.  1001. 

799,  n.  48.  If  the  person  served  is  notified  in  writing  that  no 
claim  is  made  against  him  individually,  he  cannot  compel 
plaintiff's  attorney  to  accept  service  of  his  notice  of  appearance 
and  his  answer  which  defends  on  the  merits.  Steinhaus  v.  En- 
terprise Vending  Mach.  Co.,  39  Misc.  797,  81  N.  Y.  Supp.  282. 

800,  n.  54.  Rule  applied  to  special  proceedings  in  Martin  v. 
Crossley,  46  Misc.  254,  91  N.  Y.  Supp.  712. 

804,  n.  13.  One  of  several  executors  who  are  sued  together 
may  appear  so  as  to  bind  all.  Montgomery  v.  Boyd,  78  App. 
Div.  64,  73,  79  N.  Y.  Supp.  879. 

805,  n.  18.  Littauer  v.  Stern,  officially  reported  in  88  App. 
Div.  274,  is  affirmed  in  177  N.  Y.  233. 

805,  §  771.  An  executor  sued  both  individually  and  as  ex- 
ecutor may  appear  by  different  attorneys.  Roche  v.  O 'Conner, 
95  App.  Div.  496,  88  N.  Y.  Supp.  968. 

806,  n.  27.  Stokes  v.  Schildknecht,  85  App.  Div.  602,  83  N. 
Y.  Supp.  -358. 

816,  n.  85.  Rule  applied  to  special  proceedings.  Martin  v. 
Crossley,  46  Misc.  254,  91  N.  Y.  Supp.  712. 

821,  n.  8.  Worthington  v.  Worthington,  100  App.  Div.  332, 
91  N.  Y.  Supp.  443. 

825,  n.  31.  Williamson  v.  Wager,  90  App.  Div.  186,  191,  86 
NT.  Y.  Supp.  684. 

825,  §  789.     Where  the  fact  to  be  stated  is  the  result  of  other 


APPENDIX.  4091 

facts,  the  resultant  facts,  not  those  furnishing  evidence  thereof, 
should  be  stated.  Williamson  v.  Wager,  90  App.  Div.  186,  191, 
86  N.  Y.  Supp.  684. 

826,  n.  37.  See,  also,  Ring  v.  Mitchell,  45  Misc.  493,  92  N.  Y. 
Supp.  749. 

828,  §  792.  An  allegation  that  defendant  defaulted  on  a 
contract  is  bad  as  a  statement  of  a  conclusion.  Davis  v.  Silver- 
man, 98  App.  Div.  305,  90  N.  Y.  Supp.  589. 

828,  n.  61.  Burdick  v.  Chesebrough,  94  App.  Div.  532,  535, 
88  N.  Y.  Supp.  13. 

828,  n.  63.  Knowles  v.  City  of  N.  Y.,  176  N.  Y.  430,  437. 
Allegations  that  acts  were  fraudulent  and  collusive  are  con- 
clusions.    Wallace  v.  Jones,  182  N.  Y.  37. 

829.  The  allegation  "that  there  never  was  any  valuable  or 
other  legal  consideration"  is  equivalent  to  an  allegation  that 
there  was  no  consideration,  and  is  the  allegation  of  a  fact  and 
not  of  a  conclusion.  First  Nat.  Bank  of  Towanda  v.  Robinson, 
105  App.  Div.  193,  94  N.  Y.  Supp.  767.  So  an  allegation  that 
a  written  instrument  was  "duly"  assigned  is  sufficient.  Levy 
v.  Cohen,  103  App.  Div.  195,  92  N.  Y.  Supp.  1074.  And,  in  an 
action  for  malicious  prosecution,  an  allegation  that,  before  a 
magistrate,  the  defendant  "falsely  and  maliciously  and  with- 
out just  cause  or  provocation  charged  the  plaintiff,"  etc.,  is 
a  good  plea  of  want  of  probable  cause.  Bregman  v.  Kress,  83 
App.  Div.  1,  81  N.  Y.  Supp.  1072.  An  allegation  that  "plaintiff 
is  not  a  bona  fide  holder  in  due  course  of  said  note"  is  bad  as 
a  conclusion  of  law,  as  is  an  allegation  that  a  note  had,  "before 
its  delivery  to  said  plaintiff,  no  legal  inception."  Rogers  v. 
Norton,  46  Misc.  494,  95  N.  Y.  Supp.  49. 

829,  n.  65.  Armstrong  v.  Heide,  47  Misc.  609,  94  N.  Y. 
Supp.  434. 

829,  n.  71.  Petty  v.  Emery,  96  App.  Div.  35,  88  N.  Y.  Supp. 
823;  Burdick  v.  Chesebrough,  94  App.  Div.  532,  535,  88  N.  Y. 
Supp.  13. 

829,  n.  73.  Wenk  v.  City  of  N.  Y.,  82  App.  Div.  584,  81  N. 
Y.  Supp.  583. 

830,  n.  88.  Burdick  v.  Chesebrough,  94  App.  Div.  532,  536r 
88  N.  Y.  Supp.  13. 


40«tL>  APPENDIX. 

830,  n.  89.  Williamson  v.  Wager,  90  App.  Div.  186,  86  N.  Y. 
Supp.  684. 

833,  n.  120.  Matter  which  can  have  no  bearing  on  the  issues, 
either  on  account  of  its  manifest  irrelevancy  or  because  the  law 
declares  that  it  cannot  be  introduced,  is  irrelevant.  Uggla  v. 
Brokaw,  77  App.  Div.  314,  79  N.  Y.  Supp.  244. 

833,  u.  121.  Iu  a  suit  in  equity  the  pleader  is  not  confined 
with  the  same  degree  of  strictness  to  alleging  the  material  facts 
only  as  in  an  action  at  law.  Allegations  of  inducement  are 
permissible  in  a  complaint  in  equity.  McGarahan  v.  Sheridan, 
106  App.  Div.  532,  94  N.  Y.  Supp.  708.  Striking  out  statements 
of  evidence,  see,  post,  1067,  n.  52. 

837,  n.  146.  The  complaint  may  state  a  cause  of  action  for 
personal  injuries  as  at  common  law  and  also  state  it  accord- 
ing to  the  Employer's  Liability  Act.  Mulligan  v.  Erie  R.  Co., 
99  App.  Div.  499,  91  N.  Y.  Supp.  60. 

843,  n.  190.  Hasberg  v.  Moses  is  officially  reported  in  81 
App.  Div.  199. 

848,  n.  228.  In  an  action  for  libel,  a  complaint  not  alleging 
any  specific  date  of  the  publication  of  the  defamatory  matter 
is  too  indefinite.  Cerro  De  Pasco  Tunnel  &  Min.  Co.  v.  Haggin, 
106  App.  Div.  388,  94  N.  Y.  Supp.  593. 

848,  n.  231.  The  names  of  those  who  are  necessarily  referred 
to  in  a  pleading  and  their  interest  should  appear  with  certainty. 
In  the  absence  of  an  averment  that  their  names  are  unknown, 
parties  referred  to  as  "others"  must  be  made  definite  and  cer- 
tain.   Smith  v.  Irvin,  45  Misc.  262,  92  N.  Y.  Supp.  170. 

851,  n.  246.  Seydel  v.  Corporation  Liquidating  Co.,  46  Misc. 
576,  92  N.  Y.  Supp.  225. 

851,  n.  251.  Ziemer  v.  Crucible  Steel  Co.,  99  App.  Div.  169, 
90  N.  Y.  Supp.  962. 

852,  n.  256.  Vandegrift  v.  Bertron,  83  App.  Div.  548,  82  N. 
Y.  Supp.  153. 

853,  n.  268.  Guarino  v.  Fireman's  Ins.  Co.,  44  Misc.  218,  88 
N.  Y.  Supp.  1044. 

854,  n.  276.  Failure  to  object,  before  the  opening  of  the 
trial,  in  an  action  on  a  policy,  to  the  plaintiff's  failure  to  at- 
tach a  copy  of  the  policy  to  the  complaint,  where  the  answer 


APPENDIX.  4093 

admitted  the  making  of  the  policy  as  alleged  in  the  complaint, 
and  Avhere  defendant  has  one  form  of  policy  and  it  is  the  duty 
of  its  secretary  to  keep  a  record  of  all  of  its  policies  of  insur- 
ance, precludes  an  attack  on  the  sufficiency  of  the  complaint. 
Nugent  v.  Rensselaer  County  Mut.  Fire  Ins.  Co.,  106  App.  Div. 
308,  94  N.  Y.  Supp.  605. 

855,  n.  286.  It  is  unnecessary,  in  the  complaint,  to  allege  in 
detail  the  facts  essential  to  connect  plaintiff  with  the  libel. 
Corr  v.  Sun  Print.  &  Pub.  Ass'n,  177  N.  Y.  131,  135;  Bianchi 
v.  Star  Co.,  46  Misc.  486,  95  N.  Y.  Supp.  28. 

857,  §  800.  Cited  by  Spencer,  J.,  in  Stone  v.  Hudson  Valley 
R.  Co.,  47  Misc.  5,  95  N.  Y.  Supp.  220,  which  held  that  an  ac- 
tion to  recover  assessments  against  a  member  of  a  casualty  as- 
sociation was  not  an  action  on  an  account. 

858,  n.  299.  Where  the  action  is  deemed  to  be  one  in  which 
defendant  is  not  entitled  as  of  right  to  demand  a  bill  of  partic- 
ulars or  copy  of  account,  plaintiff's  attorney  may  move  to  strike 
out  the  demand,  in  order  to  relieve  himself  from  the  necessity 
of  determining,  at  his  peril,  whether  the  case  is  one  in  which 
a  demand  is  a  matter  of  right.  Main  v.  Pender,  88  App.  Div. 
237,  85  N.  Y.  Supp.  428.  It  is  immaterial  that  the  motion  is  not 
made  and  heard  within  ten  days  after  the  service  of  the  de- 
mand. Stone  v.  Hudson  Valley  R.  Co.,  47  Misc.  5,  95  N.  Y. 
Supp.  220. 

859,  §  802.  A  receipt  and  statement  of  amount  due,  signed 
by  plaintiff,  is  not  sufficient.  Beirne  v.  Sanderson,  83  App.  Div. 
62,  82  N.  Y.  Supp.  493. 

862,  n.  326.  This  clause  is  stricken  out  by  Laws  1904,  c.  500, 
and  the  following  sentence  is  substituted:  "Upon  application, 
in  any  case,  the  court,  or  a  judge  authorized  to  make  an  order 
in  the  action,  may,  upon  notice,  direct  a  bill  of  particulars  of 
the  claim  of  either  party  to  be  delivered  to  the  adverse  party, 
and  in  case  of  default  the  court  shall  preclude  him  from  giving 
evidence  of  the  part  or  parts  of  his  affirmative  allegation  of 
which  particulars  have  not  been  delivered." 

862,  n.  328.     Swan  v.  Swan,  44  Misc.  163,  89  N.  Y.  Supp.  794. 

863.  A  bill  of  particulars  is  not  necessary,  it  seems,  to  enable 
the  defendant  to  answer,  where  the  defendant  has  or  has  not 


4094:  APPENDIX. 

knowledge  sufficient  to  admit  or  deny,  since  he  may  deny  knowl- 
edge or  information  sufficient  to  form  a  belief.  Hicks  v.  Eg- 
gleston,  95  App.  Div.  162,  88  N.  Y.  Supp.  528.  A  bill  will  not  be 
ordered,  on  motion  of  defendant,  where  the  conceded  facts  en- 
title plaintiff  to  an  accounting  by  the  defendant.  Heidenreich 
v.  Hirsh,  85  App.  Div.  319,  83  N.  Y.  Supp.  366.  Particulars  of 
the  names  of  persons  whom  plaintiff  procured  to  purchase  de- 
fendant's goods,  on  which  sales  the  plaintiff  claims  to  be  en- 
titled to  commissions,  was  held  properly  awarded  before  an- 
swer in  Zeigler  v.  Garvin,  84  App.  Div.  281,  82  N.  Y.  Supp.  769. 
Particulars  of  an  affirmative  defense  may  be  ordered  to  the 
same  extent  as  the  particulars  of  the  cause  of  action.  Spitz  v. 
Heinze,  77  App.  Div.  317,  79  N.  Y.  Supp.  187.  The  fact  that 
the  moving  party  is  an  executor  was  taken  into  consideration  in 
Oatman  v.  Watrous,  99  App.  Div.  254,  90  N.  Y.  Supp.'  940. 

863,  n.  331.  Kavanaugh  v.  Commonwealth  Trust  Co.,  45 
Misc.  201,  91  N.  Y.  Supp.  967. 

863,  n.  332.  American  Transfer  Co.  v.  George  Borgfeldt  & 
Co.,  99  App.  Div.  470,  91  N.  Y.  Supp.  209 ;  Goivans  v.  Jobbins, 
90  App.  Div.  429,  86  N.  Y.  Supp.  312;  Belasco  v.  Klaw,  96  App. 
Div.  268,  89  N.  Y.  Supp.  208 ;  Neuwelt  v.  Consolidated  Gas  Co., 
94  App.  Div.  312,  87  N.  Y.  Supp.  1003.  Where  it  appears  that 
the  facts  are  as  much  within  the  knowledge  of  the  party  de- 
manding as  they  can  be  on  the  part  of  the  party  from  whom  the 
demand  is  made,  and  that  the  real  object  of  the  bill  of  particu- 
lars is  to  limit  the  party  furnishing  the  same  to  the  exact  alle- 
gations of  such  bill  of  particulars,  the  appellate  court  will  not 
interfere  to  control  the  discretion  of  the  court  below  in  denying 
the  motion.  Messer  v.  Aaron,  101  App.  Div.  169,  91  N.  Y.  Supp. 
921. 

864,  n.  337.  Slingerland  v.  Corwin,  105  App.  Div.  310,  93  N. 
Y.  Supp.  953. 

864,  n.  338.  It  is  not  the  duty  of  a  party  to  a  litigation  to  dis- 
close to  his  adversary  the  names  of  the  witnesses  he  will  call  in 
support  of  his  allegations,  unless  this  is  an  incident  to  the  fur- 
nishing of  information  in  reference  to  an  issuable  fact.  Knipe 
v.  Brooklyn  Daily  Eagle,  101  App.  Div.  43,  91  N.  Y.  Supp.  872. 
In  an  action  for  libel  where  defendant  pleaded  the  truth  of  the 


APPENDIX.  4095 

alleged  libelous  statements,  founded  on  statements  of  residents 
to  a  reporter  of  defendant,  a  bill  of  particulars  containing  the 
names  and  addresses  of  the  reporter  and  his  informants  is  prop- 
erly denied.    Id. 

864,  n.  342.  The  same  rule  applies  where  denials  of  matters 
which  plaintiff  must  prove  are  incorporated  into  a  counterclaim 
of  which  plaintiff  demands  particulars.  O'Rourke  v.  United 
States  Mortg.  &  Trust  Co.,  95  App.  Div.  518,  88  N.  Y.  Supp. 
926;  Reitmayer  v.  Crombie,  94  App.  Div.  303,  87  N.  Y.  Supp. 
973.  Contra,  Hopper  v.  Weber,  84  App.  Div.  266,  82  N.  Y.  Supp. 
567.  These  cases  were  all  actions  on  contract  where  defendants 
counterclaimed  for  damages  for  breach  of  the  contract,  and 
plaintiff  sought  to  compel  defendant  to  furnish  the  particulars 
as  to  the  portions  of  the  contract  broken.  So  where  a  denial  is 
specific,  particulars  will  not  be  ordered,  as  where  the  answer 
sets  up  certain  particulars  in  which  plaintiff  failed  to  comply 
with  the  contract  sued  on.  Barretto  v.  Rothschild,  93  App.  Div. 
211,  87  N.  Y.  Supp.  553.  Where  a  recovery  is  sought  upon  the 
theory  of  a  contract  which  has  been  performed,  and  wherein  the 
answer  denies  full  performance,  a  defendant  is  not  required  to 
give  the  particulars  in  which  the  plaintiff  has  failed  to  perform ; 
for  the  reason  that  such  knowledge  is  as  much  within  the  pos- 
session of  the  plaintiff  as  of  the  defendant,  and  before  the 
former  can  recover  it  will  be  necessary  to  prove  full  perform- 
ance. Reitmayer  v.  Crombie,  94  App.  Div.  303,  87  N.  Y.  Supp. 
973;  O'Rourke  v.  United  States  Mortg.  &  Trust  Co.,  95  App. 
Div.  518,  88  N.  Y.  Supp.  926.  But  where  defendant  denied  per- 
formance, and  alleged  by  way  of  offset,  without  counterclaim, 
that  he  had  expended  moneys  for  labor  and  materials  in  com- 
pleting the  contract,  etc.,  such  allegations  being  competent  in 
support  of  the  defense  of  nonperformance,  plaintiff  was  entitled 
to  particulars  with  reference  thereto.  Brandt  v.  City  of  N.  Y.. 
99  App.  Div.  260,  90  N.  Y.  Supp.  929.  That  the  answer  only 
contains  denials  is  no  reason  for  refusing  to  compel  "plaintiff" 
to  furnish  a  bill  of  particulars.  Newman  v.  West,  101  App. 
Div.  288,  91  N.  Y.  Supp.  740. 

865,  n.  344.  In  an  action  for  fraud,  unless  the  defendant  de- 
nies the  fraud  charged  in  the  complaint,  a  bill  of  particulars  of 


t096  APPENDIX. 

the  plaintiff's  claim  should  not  be  ordered.    Newman  v.  West, 
KM  App.  Div.  288,  91  N.  Y.  Supp.  740. 

865,  §  808.  Bill  of  particulars  as  to  payment  set  up  by  the 
answer  may  be  ordered.  Lynch  v.  Dorscy,  98  App  Div.  163,  90 
X.  V.  Supp.  741.  Contra,  Swan  v.  Swan,  44  Misc.  163,  89  N.  Y. 
Supp.  794. 

865,  n.  348.  But  see  Spitz  v.  Heinze,  77  App.  Div.  317,  79 
N.  Y.  Supp.  187. 

866,  Bill  held  properly  ordered  in  action  to  recover  damages 
for  injuries  to  personal  property  sustained  by  the  plaintiff  in 
consequence  of  the  negligent  manner  in  which  the  defendant 
maintained  and  repaired  the  roof  of  certain  premises,  of  which 
the  defendant  was  the  lessor  and  the  plaintiff  the  lessee.  M.  J. 
Taylor  &  Co.  v.  Asiel,  93  N.  Y.  Supp.  377.  Bill  refused  as  to 
names  and  addresses  of  dealers  whose  trade  in  plaintiff's  goods 
was  lost  by  defendant's  contract  for  exclusive  sale  of  particu- 
lar goods.  Armstrong  v.  Heide,  45  Misc.  344,  90  N.  Y.  Supp. 
372.  In  Treadwell  v.  Greene,  87  App.  Div.  289,  84  N.  Y.  Supp. 
354,  Avhich  was  an  action  to  recover  for  services,  a  bill  was  or- 
dered as  to  whether  certain  contracts  were  oral  or  written, 
their  date,  and  whether  made  personally  by  defendant  or 
through  an  agent. 

867,  n.  362.  Dangerous  condition  of  stairway.  Robinson  v. 
Stewart,  84  App.  Div.  594,  82  N.  Y.  Supp.  928.  Defective  con- 
dition of  window.  Burke  v.  Frenkel,  95  App.  Div.  89,  88  N.  Y. 
Supp.  517.  But  in  Neuwelt  v.  Consolidated  Gas  Co.,  94  App. 
Div.  312,  87  N.  Y.  Supp.  1003,  it  was  held  improper  to  require 
plaintiff  to  furnish  a  bill  of  particulars  specifying  the  particu- 
lar act  or  acts  of  negligence  on  the  part  of  defendant  gas  com- 
pany which  the  plaintiff  claimed  had  caused  the  explosion. 

867,  n.  363.  O'Neill  v.  Interurban  St.  R.  Co.,  87  App.  Div.  557, 
84  N.  Y.  Supp.  505.  Particulars  as  to  medical  expense  may  be 
ordered  as  may  the  particulars  as  to  the  time  lost  by  plaintiff 
and  the  wages  which  he  was  prevented  from  earning.  Ziadi 
v.  Interurban  St.  R.  Co.,  97  App.  Div.  137,  89  N.  Y.  Supp.  606. 
But  particulars  of  injuries  not  permanent  cannot  be  required. 
Lachenbruch  v.  Cushman,  87  N.  Y.  Supp.  476. 

868,  n.  364.     Names  of  defendant's  witnesses  will  not  be  re- 


APPENDIX.  4097 

quired.  Knipe  v.  Brooklyn  Daily  Eagle,  101  App.  Div.  43,  91 
N.  Y.  Supp.  872. 

869,  n.  371.  The  names  of  the  "duly  authorized  agent  or 
agents"  of  the  plaintiff  to  whom  fraudulent  statements  were 
made,  and  the  names  of  the  officers  of  a  corporation  alleged  to 
have  conspired  against  plaintiff,  may  be  obtained  by  an  indi- 
vidual defendant.  Riker  v.  Erlanger,  87  App.  Div.  137,  84 
N.  Y.  Supp.  69. 

869,  n.  372.  If  the  defendant  has  been  guilty  of  a  fraud,  it 
does  not  need,  in  order  to  properly  defend  the  action,  to  be  in- 
formed, in  advance  of  the  trial,  what  information  the  plaintiff 
has  on  that  subject.  It  is  not  the  office  of  a  bill  of  particulars 
to  inform  an  adversary,  in  advance  of  the  trial,  upon  what  his 
opponent  relies.  American  Transfer  Co.  v.  George  Borgfeldt 
&  Co.,  99  App.  Div.  470,  91  N.  Y.  Supp.  209. 

869,  n.  374.  Slingerland  v.  Corwin,  105  App.  Div.  310,  93  N. 
Y.  Supp.  953. 

870,  n.  378.  Kirkland  v.  Kirkland,  39  Misc.  423,  80  N.  Y. 
Supp.  21. 

870,  n.  381.  The  1904  amendment  of  section  531  of  the  Code 
expressly  requires  notice  of  the  motion.  It  changes  the  former 
practice  by  permitting  the  application  to  be  made  to  the  court 
"or  to  a  judge  authorized  to  make  an  order  in  the  action." 

870,  §  809.  While  the  usual  practice  is  to  serve  a  demand  for 
a  bill  of  particulars  to  obtain  costs  of  the  motion  if  the  demand 
is  not  complied  with,  yet  it  seems  that  a  formal  demand  is  not 
necessary  for  'that  purpose,  since  it  is  held  in  Kelly  v.  United 
Traction  Co.,  88  App.  Div.  234,  85  N.  Y.  Supp.  433,  that  such  a 
demand  will  be  stricken  out  on  motion  inasmuch  as  a  party  can 
demand,  as  of  right,  only  a  copy  of  the  items  alleged  in  an  ac- 
count. 

871.  If  a  bill  is  served  before  a  motion  is  made  to  compel 
the  delivery  of  a  bill,  and  it  is  retained,  the  motion  should  be 
for  a  further  bill.  Schlesinger  v.  Thalmessinger,  93  X.  Y.  Supp. 
381. 

871,  n.  382.  Practice  of  moving  in  the  alternative  condemned 
in  Kavanaugh  v.  Commonwealth  Trust  Co.,  45  Misc.  201,  91 
X.  Y.  Supp.  967. 

N.  Y.  Prac—  257. 


4098  APPENDIX. 

871,  n.  385.  Kirkland  v.  Kirkland,  39  Misc.  423,  80  N.  Y. 
Supp.  21. 

871,  n.  389.  Toomey  v.  Whitney  is  officially  reported  in  81 
App.  Div.  441. 

872,  nn.  391,  392.  It  would  seem  that  where  defendant  has  not 
sufficient  knowledge  to  either  admit  or  deny  allegations  of  the 
complaint,  it  is  necessary  to  answer  by  denying  any  knowledge 
or  information  sufficient  to  form  a  belief  before  moving  for  a 
bill  of  particulars  (American  Credit  Indem.  Co.  v.  Bondy,  17 
App.  Div.  328,  45  N.  Y.  Supp.  267 ;  followed  in  Hicks  v.  Eggle- 
ston,  95  App.  Div.  162,  88  N.  Y.  Supp.  528),  but  it  is  submitted 
that  these  cases  are  not  sufficiently  broad  to  prevent,  in  every 
*other  case,  the  granting  of  a  bill  of  particulars  before  the  party 
serves  his  pleading,  i.  e.,  before  defendant  serves  his  answer  if 
he  is  the  moving  party,  or  before  plaintiff  serves  his  reply  if  he 
is  the  moving  party.  In  other  words,  the  order,  where  made  be- 
fore the  moving  party  pleads,  cannot  be  sustained  on  the  ground 
that  it  is  necessary  to  prepare  for  trial.  Hicks  v.  Eggles^on,  95 
App.  Div.  162,  88  N.  Y.  Supp.  528.  Where  "the  defendant  has, 
in  his  moving  papers,  sworn  to  merits,  a  bill  of  particulars  is 
unnecessary  in  order  to  enable  him  to  plead.  1  Nichols'  Pr. 
863,  and  cases  there  cited."  Kavanaugh  v.  Commonwealth 
Trust  Co.,  45  Misc.  201,  91  N.  Y.  Supp.  967.  No  bill  of  particu- 
lars concerning  a  counterclaim,  to  prepare  for  trial,  will  be 
ordered  until  a  reply  has  been  served.  Fidelity  Glass  Co.  v. 
Thatcher  Mfg.  Co.,  88  App.  Div.  287,  85  N.  Y.  Supp.  8.  "In 
American  Credit  Indemnity  Co.  v.  Bondy,  17  App.  Div.  328, 
45  N.  Y.  Supp.  267,  it  was  held  by  the  appellate  division,  in  the 
first  department,  that,  where  no  answer  has  been  served,  a  mo- 
tion by  the  defendant  for  a  bill  of  particulars  upon  the  ground 
that  it  was  necessary  for  his  defense,  must  be  denied,  as  it  can- 
not be  said  that  a  defense  will  be  made  until  an  issue  is  raised 
by  the  service  of  an  answer ;  and  it  was  further  held  that  such 
an  order  could  not  be  granted  to  enable  the  defendant  to  an- 
swer where  he  was  wholly  ignorant  of  the  particulars  of  the 
plaintiff's  claim,  inasmuch  as  the  Code  of  Civil  Procedure  (sec- 
tion 500)  permits  him  to  deny  any  knowledge  or  information 
sufficient  to  form  a  belief  as  to  the  allegations  of  the  complaint 


APPENDIX.  4099 

in  reference  to  it.  That  case  was  followed  by  this  court  on  both 
points  in  Hicks  v.  Eggleston,  95  App.  Div.  162,  88  N.  Y.  Supp. 
528,  and  must  be  assumed  to  state  the  rule  applicable  to  the 
situation  in  this  department."  Schultz  v.  Rubsam,  93  N.  Y. 
Supp.  334. 

872,  n.  393.  Gowans  v.  Jobbins,  90  App.  Div.  429,  432,  86 
N.  Y.  Supp.  312. 

873,  n.  397.  Florsheim  v.  Musical  Courier  Co.,  103  App.  Div. 
388,  93  N.  Y.  Supp.  41. 

874,  If  verified  pleadings  are  a  part  of  the  moving  papers, 
denials  therein  are  to  be  treated  as  if  in  the  moving  affidavit. 
Newman  v.  West,  101  App.  Div.  288,  91  N.  Y.  Supp.  740. 

874,  n.  408.  Toomey  v.  Whitney  is  officially  reported  in  81 
App.  Div.  441. 

875.  Form  of  affidavit.  Propriety  of  motion  before  plead- 
ing, see  ante  872,  nn.  391,  392. 

875,  n.  412.     Ziadi  v.  Interurban  St.  R.  Co.,  97  App.  Div.  137, 

89  N.  Y.  Supp.  606. 

876,  n.  418.  Earle  v.  Earle,  79  App.  Div.  631  (mem.),  79 
X.  Y.  Supp.  613. 

876,  n.  424.  D'Anglemont  v.  Fischer,  87  N.  Y.  Supp.  505. 
The  1904  amendment  of  section  531  of  the  Code  requires  the  in- 
clusion of  such  clauses  in  the  order.  It  seems  that  the  provis- 
ion is  mandatory  and  exclusive  so  that  the  order,  at  the  pres- 
ent time,  can  impose  no  other  penalty  for  its  disobedience. 
This  clause  should  now,  it  seems,  be  included  in  every  order 
granting  an  application.     Oatman  v.  Watrous,  99  App.  Div.  254, 

90  N.  Y.  Supp.  940. 

877.  The  order  should  not  require  the  annexation  of  docu- 
mentary evidence.  Pruyn  v.  Ecuadorian  Ass'n,  94  App.  Div. 
195,  87  N.  Y.  Supp.  970.  An  order  allowing  particulars  to  be 
served  after  a  default  should  not  provide  for  a  production  of 
books  and  papers.  Romer  v.  Kensico  Cemetery,  79  App.  Div. 
100,  80  N.  Y.  Supp.  38. 

879,  n.  445.  Where  the  bill  is  insufficient,  it  may  be  returned 
with  a  notice  of  the  reason  therefor,  so  as  to  put  the  burden 
of  making  a  motion  to  test  its  sufficiency  on  the  party  furnish- 
in  g  the  bill.     The  party  served  with  the  bill  has  his  choice  to 


Hi  it  I  APPENDIX. 

return  the  bill  furnished  or  to  demand  a  further  bill.  Faller 
v.  Ranger,  44  Misc.  424,  90  N.  Y.  Supp.  55.  In  this  case,  the 
court  discusses  the  practice  as  follows:  "If  the  bill  of  particu- 
lars  is  returned,  then  the  party  serving  it,  taking  the  risk  of  its 
sufficiency,  may  do  nothing,  and  wait  until  the  question  is  raised 
upon  the  trial.  This  risk,  however,  we  do  not  think  he  should 
be  bound  to  assume,  or  that  it  is  good  practice  to  assume  it, 
because  it  will  necessarily  place  him  at  a  disadvantage  in  hav- 
ing to  go  to  trial,  assuming  the  risk  that  the  bill  of  particulars, 
as  served,  complied  with  the  order;  the  defendant,  on  the  other 
hand,  assuming  no  risk  by  returning  it,  even  if  it  does  comply. 
*  *  *  If  the  bill  as  served  is  deemed  defective  or  insuffi- 
cient, the  one  on  whom  it  is  served  can  move  for  a  further  bill 
of  particulars,  and  this  is  seemingly  the  more  regular  and  or- 
derly practice.  Should  he,  however,  elect  to  return  it,  then  the 
party  serving  it  should  have  the  right  to  compel  him  to  accept 
it,  and  on  such  a  motion  the  question  of  whether  or  not  it  com- 
plies with  the  order  should  be  decided.  In  either  of  these  events 
the  question  is  determined  in  advance  of  the  trial,  and  such 
practice  commends  itself,  because  it  tends  to  avoid  delay  and 
confusion  at  the  outset  of  a  trial,  and  saves  the  trial  judge  from 
being  bothered  by  questions  of  practice  and  sufficiency  of  bills 
of  particulars  at  a  time  when  he  is  ready  to  take  up  and  dispose 
of  the  controversy  on  its  merits."  Faller  v.  Ranger,  99  App. 
Div.  374,  91  N.  Y.  Supp.  205. 

880,  n.  455.  Defective  averments  in  the  answer,  as  to  fraud, 
cannot  be  aided  by  statements  in  the  bill  of  particulars.  The 
rule  is  that  a  bill  of  particulars  cannot  be  resorted  to  to  enlarge 
the  grounds  of  recovery,  to  change  the  cause  of  action,  or  to  en- 
large the  defense  set  up  in  the  answer.  Beadleston  &  Woerz 
v.  Furrer,  102  App.  Div.  544,  92  N.  Y.  Supp.  879. 

880,  n.  456.  Lester  v.  Clarke,  40  Misc.  688,  83  N.  Y.  Supp. 
168. 

881,  n.  463.  Failure  to  demand  a  copy  of  the  complaint 
within  twenty  days  precludes  a  subsequent  motion  to  require 
pla'intiff's  attorney  to  serve  a  copy.  The  practice  is  to  apply 
to  the  court  to  open  the  default  and  be  permitted  to  serve  a  de- 


APPENDIX.  4101 

mand.  Stokes  v.  Schildknecht,  85  App.  Div.  602,  83  N.  Y.  Supp. 
358. 

882,  n.  475.  Interlineation  in  the  original,  not  in  the  copy 
served,  is  to  be  disregarded.  Guarino  v.  Fireman's  Ins.  Co., 
44  Misc.  218,  88  N.  Y.  Supp.  1044. 

885,  §  819.  After  a  case  has  been  set  down  for  trial,  it  is 
proper  to  refuse  to  allow  a  demurrer  to  be  substituted  for  the 
answer  where  the  question  sought  to  be  raised  by  the  demurrer 
can  be  presented  under  the  answer.  Le  Brantz  v.  Campbell,  89 
App.  Div.  583,  85  N.  Y.  Supp.  654.  After  a  reversal,  on  appeal, 
of  an  order  striking  certain  allegations  from  the  complaint, 
defendant  should  be  granted  leave  to  withdraw  his  answer. 
Brown  v.  Fish,  40  Misc.  573,  82  N.  Y.  Supp.  939. 

887,  nn.  503-505.  By  Laws  1904,  c.  518,  which  amended  sec- 
tion 1680  of  the  Code,  the  complaint  must  be  verified  to  enable 
plaintiff  to  file  a  lis  pendens. 

891,  n.  545.  Eastham  v.  New  York  State  Tel.  Co.,  86  App. 
Div.  562,  83  N.  Y.  Supp.  1019. 

896,  n.  585.  Henry  v.  Brooklyn  Heights  R.  Co.,  43  Misc. 
589,  89  N.  Y.  Supp.  525. 

896,  n.  587.  Of  course,  if  the  answer  denies  knowledge  or 
information  sufficient  to  form  a  belief,  the  attorney  may  verify 
it  without  setting  forth  the  grounds  of  his  belief.  American 
Audit  Co.  v.  Industrial  Federation,  84  App.  Div.  304,  82  N.  Y. 
Supp.  642. 

898,  n.  597.  Morris  v.  Fowler,  99  App.  Div.  245,  90  N.  Y. 
Supp.  918. 

901,  n.  627.  When  pleading  is  returned  in  twenty-four  hours, 
see  Sweeney  v.  O'Dwyer,  45  Misc.  43,  90  N.  Y.  Supp.  806. 

906,  n.  652.  Williamson  v.  Wager,  90  App.  Div.  186,  86  N. 
Y.  Supp.  684. 

908,  n.  669.  Goldstein  v.  Michelson,  45  Misc.  601,  91  N.  Y. 
Supp.  33. 

910,  n.  676.  Driscoll  v.  Brooklyn  Union  El.  R.  Co.,  95  App. 
Div.  146,  88  N.  Y.  Supp.  745 ;  Fiebiger  v.  Forbes,  43  Misc.  612, 
88  N.  Y.  Supp.  284. 

913,  n.  708.     Evidence  in  contradiction  to  admissions  in  the 


4102  APPENDIX. 

pleadings,  though  admitted  without  objection,  must  be  disre- 
garded. Pennacchio  v.  Greco,  107  App.  Div.  225,  94  N.  Y. 
Supp.  1061. 

915,  n.  720.  Tautphoeus  v.  Harbor  &  S.  Bldg.  &  Sav.  Ass'n, 
96  App.  Div.  23,  88  N.  Y.  Supp.  709. 

915,  n.  723.  See,  also,  Fuller  Buggy  Co.  v.  Waldron,  94  N. 
Y.  Supp.  1017. 

915,  n.  724.  When  return  is  made  in  twenty-four  hours,  see 
Sweeney  v.  O'Dwyer,  45  Misc.  43,  90  N.  Y.  Supp.  806. 

918,  n.  2.  The  second  subdivision  of  this  Code  provision  was 
amended  by  Laws  1904,  c.  500,  so  as  to  require  a  "clear,  pre- 
cise, and  unequivocal"  statement  of  the  facts,  and  omitted  the 
clause  "without  unnecessary  repetition."  By  Laws  1905,  c. 
431,  it  was  again  changed  so  as  to  make  it  read  precisely  as  be- 
fore the  amendment  of  1904. 

919,  nn.  6,  7.  There  is  a  well-recognized  exception  to  this 
rule  in  that  where  it  appears  that  the  county  named  in  the  com- 
plaint as  the  place  of  trial  is  different  from  that  named  in  the 
summons,  and  such  act  was  merely  an  inadvertence,  then  the 
place  of  trial  is  not  changed,  provided  the  plaintiff's  attorney 
moves  promptly  in  the  matter  to  correct  the  error,  so  as  not  to 
permit  his  adversary  to  presume  the  change  was  intentional. 
Goldstein  v.  Marx,  73  App.  Div.  545,  77  N.  Y.  Supp.  956 ;  Tol- 
hurst  v.  Howard,  94  App.  Div.  439,  88  N.  Y.  Supp.  235 ;  Bell  v. 
Polymero,  99  App.  Div.  303,  90  N.  Y.  Supp.  920. 

921,  n.  24.  Willets  v.  Haines,  96  App.  Div.  5,  88  N.  Y.  Supp. 
1018 ;  Newland  v.  Zodikow,  39  Misc.  541,  80  N.  Y.  Supp.  375. 

923.  A  complaint  in  a  county  court,  in  an  action  for  money 
only,  must  show  the  residence  of  defendant  within  the  county. 
Perlman  v.  Gunn,  41  Misc.  166,  83  N.  Y.  Supp.  986. 

923,  n.  40.  A  cestui  que  trust  can  maintain  an  action  in  rela- 
tion to  the  trust  property  only  after  the  trustee  has  refused  to 
sue,  and  the  complaint  must  show  such  refusal.  Woolf  v. 
Barnes,  46  Misc.  169,  93  N.  Y.  Supp.  219. 

924.  A  general  statement  that  there  is  no  adequate  remedy 
at  law  is  not  essential  in  a  complaint  in  a  suit  in  equity  where 
it  is  manifest  from  the  facts  alleged  that  an  action  at  law  would 
give  but  an  inadequate  and  imperfect  remedy  to  the  party  ag- 


APPENDIX.  4103 

grieved.  International  Paper  Co.  v.  Hudson  Eiver  Water  Power 
Co.,  92  App.  Div.  56,  68,  86  N.  Y.  Supp.  736.  Where,  in  an  action 
in  equity,  relief  is  sought  to  be  obtained  and  the  amounts  to  be 
paid  by  either  party  to  the  other  are  uncertain  and  subject  to  an 
accounting  between  the  parties,  it  is  enough  to  offer  in  the  com- 
plaint to  pay  or  perform  whatever  obligations  rest  on  the  plaint- 
iff. International  Paper  Co.  v.  Hudson  Eiver  Water  Power 
Co.,  92  App.  Div.  56,  70,  86  N.  Y  Supp.  736.  The  complaint,  in 
an  action  by  a  foreign  corporation  on  a  New  York  contract, 
must  allege  that  it  has  obtained  a  certificate  from  the  state  of 
authority  to  do  business.  Welsbach  Co.  v.  Norwich  Gas  & 
Electric  Co.,  96  App.  Div.  52,  89  N.  Y.  Supp.  284. 

925,  n.  62.  In  an  action  for  goods  sold,  the  complaint  need 
not  allege  a  new  promise  in  writing  to  pay  the  debt  which  had 
been  discharged  in  bankruptcy.  Gruenberg  v.  Treanor,  40 
Misc.  232,  81  N.  Y.  Supp.  675.  But  nonpayment  must  be  al- 
leged. Bacon  v.  Chapman,  85  App.  Div.  309,  82  N.  Y.  Supp. 
545.  The  following  rules  are  laid  down  in  Conklin  v.  Weather- 
wax,  181  N.  Y.  258,  268,  as  to  pleading  nonpayment : 

"1.  In  an  action  upon  contract  for  the  payment  of  money 
only,  where  the  complaint  does  not  allege  a  balance  due  over 
and  above  all  payments  made,  it  is  sufficient  for  the  plaintiff 
to  allege  and  prove  a  breach  of  the  obligation  by  the  nonpay- 
ment thereof  when  it  matured,  as  the  presumption  of  nonpay- 
ment continues  until  met  by  the  allegation  and  proof  of  pay- 
ment. 

"2.  When  the  complaint  sets  forth  a  balance  in  excess  of  all 
payments,  owing  to  the  structure  of  the  pleading,  it  is  neces- 
sary for  the  plaintiff  to  prove  the  allegation  as  made,  and  this 
leaves  the  amount  of  the  payments  open  to  the  defendant  under 
a  general  denial. 

"3.  When  the  action  is  not  upon  contract  for  the  payment  of 
money,  but  is  upon  an  obligation  created  by  operation  of  law, 
or  is  for  the  enforcement  of  a  lien  where  nonpayment  of  the 
amount  secured  is  part  of  the  cause  of  action,  it  is  necessary 
both  to  allege  and  prove  the  fact  of  nonpayment." 

925,  n.  63.  Plaintiff  need  not  plead  an  exception  taking  the 
case  out  of  the  statute  of  limitations  where  the  cause  of  action 


4104  APPENDIX. 

set  forth  is  not  necessarily  barred.  Metz  v.  Metz,  45  Misc.  338, 
90  N.  Y.  Supp.  340. 

926,  n.  70.  A  distinctly  numbered  paragraph  may  be  incor- 
porated in  the  statement  of  a  subsequent  cause  of  action,  by 
reference  thereto  as  such.  Bigelow  v.  Drummond,  98  App.  Div. 
499,  90  N.  Y.  Supp.  913,  which  reverses  42  Misc.  617,  87  N.  Y. 
Supp.  581,  which  held  that  it  is  not  sufficient  to  insert  a  state- 
ment that  plaintiffs  "repeat  and  reallege  all  the  statements  con- 
tained in  paragraphs  I.  and  III.  of  the  first  cause  of  action, 
but  as  relating  to  the  omissions  of  the  defendant  hereinafter 
mentioned. 

926,  n.  71.  A  complaint  is  not  demurrable  because  of  the  fail- 
ure to  repeat  in  each  cause  of  action  the  preliminary  allegations 
setting  forth  the  capacity  of  plaintiff  to  sue.  Bigelow  v.  Drum- 
mond, 98  App.  Div.  499,  90  N.  Y.  Supp.  913. 

928,  n.  83.  Kuntz  v.  Schnugg,  99  App.  Div.  191,  90  N.  Y. 
Supp.  933. 

928,  n.  92.  Frick  v.  Freudenthal,  45  Misc.  348,  90  N.  Y.  Supp. 
344. 

937.  The  answer  must  be  served  within  twenty  days  after 
service  of  the  complaint — not  twenty  days  after  date  of  admis- 
sion of  service  of  the  complaint  which  was  antedated  by  mis- 
take. Tolhurst  v.  Howard,  94  App.  Div.  439,  88  N.  Y.  Supp. 
235. 

937,  n.  6.  Van  Zandt  v.  Van  Zandt  is  followed  in  Sanders  v. 
People's  Co-Op.  Ice  Co.,  44  Misc.  171,  89  N.  Y.  Supp.  785. 

939,  An  order  extending  the  time  to  answer  remains  in  full 
force  until  the  order  vacating  it  is  actually  signed  and  entered, 
so  that  an  answer  served  after  the  vacating  order  is  granted  but 
before  it  is  signed  and  entered  is  served  in  time.  De  Pallandt 
v.  Flynn,  93  N.  Y.  Supp.  678. 

940,  nn.  25,  26.  Sherman  v.  McCarthy,  90  App.  Div.  542, 
85  N.  Y.  Supp.  727. 

941,  n.  31.  The  second  subdivision  of  this  Code  section  was 
amended  by  Laws  1904,  c.  500,  by  leaving  out  the  words  "with- 
out repetition,"  and  by  changing  the  clause  "in  ordinary  and 
concise  language"  to  a  "clear,  precise,  and  unequivocal  state- 
ment." By  Laws  1905,  c.  431,  it  was  again  changed  so  as  to 
read  precisely  as  before  the  1904  amendment. 


APPENDIX.  4105 

943,  n.  44.  But  a  denial  is  not  nugatory  because  preceded 
by  the  words  "for  a  second  (or  third  or  fourth)  further,  sep- 
arate, and  distinct  defense,"  etc.  Hopkins  v.  Meyer,  76  App. 
Div.  365,  78  N.  Y.  Supp.  459. 

943,  nn.  44-46.     See,  also,  post,  959,  n.  171. 

943,  n.  45.  Blumenfield  v.  Stine,  42  Misc.  411,  87  N.  Y.  Supp. 
81. 

946,  n.  64.  Landesman  v.  Hauser,  45  Misc.  603,  91  N.  Y. 
Supp.  6. 

946,  n.  69.  Weil  v.  Unique  Electric  Device  Co.,  39  Misc.  527, 
80  N.  Y.  Supp.  484.  In  an  action  by  an  officer  to  recover  sal- 
ary, any  fact  tending  to  show  that  he  was  not  legally  an  officer 
is  available  under  a  general  denial.  Murtagh  v.  City  of  N.  Y., 
106  App.  Div.  98,  94  N.  Y.  Supp.  308. 

946,  n.  70.  In  an  action  for  conversion,  defendant  is  entitled 
to  show  title  in  a  stranger  under  a  general  denial.  Ten  Eyck 
v.  Keller,  99  App.  Div.  106,  91  N.  Y.  Supp.  169. 

947,  nn.  75,  76.  But  where  the  illegality  does  not  appear  on 
the  face  of  the  complaint  or  necessarily  from  plaintiff's  evi- 
dence, it  cannot  be  taken  advantage  of  under  a  general  denial. 
Lee  v.  Lee,  40  Misc.  251,  253,  81  N.  Y.  Supp.  986.  See,  also, 
Coverly  v.  Terminal  Warehouse  Co.,  85  App.  Div.  488,  83  N.  Y. 
Supp.  369,  as  to  sufficiency  of  plea  that  contract  is  against  pub- 
lie  policy. 

948,  A  denial  of  the  allegations  of  the  complaint  "as  al- 
leged" is  bad  as  a  negative  pregnant  where  not  denying  the 
substance  of  the  complaint.  Hutchinson  v.  Bien,  104  App.  Div. 
214,  46  Misc.  302,  93  N.  Y.  Supp.  189,  216.  But  in  an  action  on 
a  contract,  a  denial  that  plaintiff  has  performed  all  the  condi- 
tions precedent  is  not  bad  as  a  negative  pregnant,  since  the 
failure  to  perform  any  one  condition  precedent  would  be  fatal. 
Electric  Equipment  Co.  v.  Feuerlicht,  90  N.  Y.  Supp.  467.  A 
negative  pregnant  may  be  disregarded  on  appeal.  Frees  v. 
Khth.  09  App.  Div.  541,  91  N.  Y.  Supp.  103. 

951.  Denial  of  "knowledge  or  information"  instead  of  "any 
knowledge  or  information"  is  sufficient.  Hidden  v.  Godfrey, 
88  App.  Div.  496,  85  N.  Y.  Supp.  197.  But  a  denial  of  "infor- 
mation sufficient  to  form  a  belief,"  etc.,  without  referring  to 


4106  APPENDIX. 

"knowledge,"  is  insufficient.  Meuer  v.  Phenix  Nat.  Bank,  87 
App.  Div.  281,  84  N.  Y.  Supp.  321. 

953,  n.  121.  Hillyer  v.  Le  Roy,  84  App.  Div.  129,  82  N.  Y. 
Supp.  80.    But  see  Ehrenfried  v.  Lackawanna  Iron  &  Steel  Co., 

89  App.  Div.  130,  85  N.  Y.  Supp.  57,  which  held,  in  a  negligence 
case,  that  where  all  the  evidence  establishing  assumption  of 
risk-  had  been  introduced  by  plaintiff,  such  defense  was  avail- 
able to  defendant  though  he  had  not  pleaded  it  in  his  answer. 

953,  n.  124.  Schultz  v.  Greenwood  Cemetry,  46  Misc.  299,  93 
N.  Y.  Supp.  180. 

954.  In  an  equitable  suit  defendant  may  set  up  in  his  answer 
matter  which  occurred  after  the  commencement  of  the  action 
and  the  service  of  the  complaint.  Wormser  v.  Metropolitan  St. 
R.  Co.,  98  App.  Div.  29,  33,  90  N.  Y.  Supp.  714.  Material  facts 
occurring  after  the  commencement  of  the  action  but  before  the 
filing  of  the  answer  may  be  set  up  in  the  answer  without  the  aid 
of  a  supplemental  answer.  Burke  v.  Rhoads,  39  Misc.  208,  79 
N.  Y.  Supp.  407.  That  the  facts  stated  in  the  complaint  or 
counterclaim  do  not  constitute  a  cause  of  action,  while  a  ground 
of  demurrer,  cannot  be  set  up  as  a  defense  in  the  answer  or 
reply.  Schlesinger  v.  Thalmessinger,  92  N.  Y.  Supp.  575.  Proof 
of  waiver  of  a  breach  of  contract  is  not  admissible  under  a  gen- 
eral denial,  but  the  waiver  must  be  pleaded  as  new  matter. 
Grant  v.  Pratt  &  Lambert,  87  App.  Div.  490,  494,  84  N.  Y.  Supp. 
983.  That  the  defendant  in  action  for  goods  sold  and  delivered 
is  a  married  woman  and  that  the  goods  were  necessaries  pur- 
chased for  the  family  in  new  matter.  Minners  v.  Smith,  40 
Misc.  648,  83  N.  Y.  Supp.  117.  That  the  plaintiff,  a  foreign  cor- 
poration, has  no  certificate  to  do  business  in  New  York,  is  new 
matter.  International  Society  v.  Dennis,  76  App.  Div.  327,  78 
N.  Y.  Supp.  497 ;  Lehigh  &  N.  E.  R.  Co  v.  American  Bonding  & 
Trust  Co.,  40  Misc.  698,  83  N.  Y.  Supp.  191. 

954,  n.  129.  Sufficiency  of  plea  of  tender,  see  Schieck  v.  Don- 
ohue,  77  App.  Div.  321,  79  N.  Y.  Supp.  233. 

954,  n.  130.  National  Radiater  Co.  v.  Hull,  79  App.  Div.  109, 
79  N.  Y.  Supp.  519. 

954,  n.  135.  Rogers  v.  T.  H.  Simonson  &  Son  Co.,  45  Misc.  323, 

90  N.  Y.  Supp.  298 ;  Forbes  v.  Wheeler,  39  Misc.  538,  80  N.  Y. 
Supp.  373. 


APPENDIX.  4107 

954,  n.  138.  Cheever  v.  British-American  Ins.  Co.,  86  App. 
Div.  333,  83  N.  Y.  Supp.  728. 

955,  n.  142.    See,  ante,  947,  nn.  75,  76. 

955,  n.  143-146.  The  statute  of  frauds  may  be  raised  by  an- 
swer though  the  invalidity  of  the  contract  appears  on  the  face 
of  the  complaint  so  as  to  make  the  complaint  demurrable.  Sea- 
mans  v.  Barentsen,  180  N.  Y.  333. 

955,  n.  143.  New  York  Fireproof  Tenement  Ass'n  v.  Stanley, 
105  App.  Div.  432,  94  N.  Y.  Supp.  160 ;  Banta  v.  Banta,  84  App. 
Div.  138,  82  N.  Y.  Supp.  113;  Seamans  v.  Barentsen,  78  App. 
Div.  36,  79  N.  Y.  Supp.  212. 

955,  last  sentence.  But  where  the  plaintiff  pleads  a  written 
contract,  the  statute  need  not  be  pleaded  to  be  available  where 
the  plaintiff  proves  an  oral  contract.  Brauer  v.  Oceanic  Steam 
Nav.  Co.,  178  N.  Y.  339,  followed  in  Levin  v.  Dietz,  94  N.  Y. 
Supp.  419.  So  where  the  complaint  states  a  cause  of  action  on 
an  oral  contract,  which,  by  its  terms  as  averred,  does  not  fall 
within  the  statute  of  frauds,  it  is  not  necessary  to  plead  the  sta- 
tute as  an  affirmative  defense  in  order  to  take  the  objection  on 
the  trial  that  the  contract  actually  proved  is  within  the  statute. 
Fanger  v.  Caspacy,  87  App.  Div.  417,  84  N.  Y.  Supp.  410. 

957,  n.  157.  Adams  v.  Slingerland  is  officially  reported  in  87 
App.  Div.  312. 

957,  n.  158.  Bauer  v.  Parker,  82  App.  Div.  289,  81  N.  Y. 
Supp.  995. 

957,  n.  160.  Le  Vie  v.  Fenton,  39  Misc.  265,  70  N.  Y.  Supp. 
496 ;  Rooney  v.  Bodkin,  93  App.  Div.  431,  87  N.  Y.  Supp.  800. 
This  rule  does  not  apply  where  the  absence  of  an  adequate  rem- 
edy at  law  is  an  essential  part  of  the  plaintiff's  case.  Everett  v. 
De  Fontaine,  78  App.  Div.  219,  79  N.  Y.  Supp.  692. 

958,  §  866.  An  answer  in  a  foreclosure  suit  alleging  that  no 
payments  of  interest  or  principal  have  been  made  to  apply  on 
the  bond  and  mortgage  since  a  certain  date,  "and  more  than 
twenty  years  have  elapsed  since  the  last  payment  was  made,  and 
said  bond  and  mortgage  are  no  longer  a  legal  or  enforcible 
claim  under  the  statutes  made  and  provided,"  sufficiently 
pleads  limitations.  Nickell  v.  Tracy,  100  App.  Div.  80,  91  N.  Y. 
Supp.  287.  So  a  plea  of  the  statute  of  limitations  which  alleges 
that  the  services  sued  for  were  rendered  more  than  six  years 


410S  APPENDIX. 

prior  to  the  commencemenl  of  the  action,  is  sufficient,  since  it 
will  be  presumed  that  compensation  therefor  was  immediately 
due  on  their  performance.  Bacon  v.  Chapman,  85  App.  Div. 
309,  82  N.  Y.  Supp.  545.  However,  a  plea  "that  the  statutory 
period  in  which  to  begin  such  an  action  as  is  here  brought,  to- 
wil,  ten  years,  has  long  since  expired,  and  that  this  action  is 
consequently  outlawed,"  is  insufficient,  since  not  averring  that 
ten  years  have  expired  before  the  commencement  of  the  action 
since  the  cause  of  action  accrued.  Schrieber  v.  Goldsmith,  39 
Misc.  381,  79  N.  Y.  Supp.  846.  So  the  alleging  that  the  particu- 
lar cause  of  action  set  forth  in  the  complaint  did  not  accrue 
within  six  years,  instead  of  pleading  generally  that  whatever 
cause  of  action  the  plaintiff  may  have  had  did  not  accrue 
within  six  years,  is  insufficient.  Gray  Lithograph  Co.  v.  Amer- 
ican Watchman's  Time  Detector  Co.,  44  Misc.  206,  88  N.  Y. 
Supp.  857. 

958,  nn.  164-167.  That  a  defense  is  not  so  designated,  where 
separate  and  distinct  and  preceded  by  the  words  "defendant 
further  answering  said  complaint,"  is  sufficient.  Eells  v.  Du- 
mary,  84  App.  Div.  105,  82  N.  Y.  Supp.  531. 

958,  nn.  168-170.  While  the  rules  laid  down  in  the  text  are 
supported  by  the  authorities  cited,  it  is  feared  that  the  erron- 
eous impression  may  be  gathered  therefrom  that  a  hypothetical 
pleading  is  always  good,  which  is  far  from  true.  The  general 
rule,  though  there  is  much  conflict  in  the  opinions,  seems  to  be 
that  a  hypothetical  statement  is  usually  subject  to  a  motion 
to  make  more  definite  and  certain  (see  vol.  1,  p.  845),  though 
not  necessarily  so  (id.  and  see  cases  cited  on  pp.  958  and  959), 
but  is  not  demurrable  (see,  post,  1003,  n.  93).  That  hypo- 
thetical defenses  are  bad,  see  Saleeby  v.  Central  R.  of  N.  J.,  40 
Misc.  269,  81  N.  Y.  Supp.  903. 

959.  In  an  action  to  recover  damages  for  breach  of  contract, 
the  defense  must  not  only  confess,  but  also  avoid  or  bar.  If  it 
does  not  fully  avoid  or  bar,  the  mere  allegation  of  the  answer  of 
a  contract  of  other  terms  or  of  a  different  character  has  no 
effect.  Barnard  v.  Lawyers'  Title  Ins.  Co.,  45  Misc.  577,  91  N. 
Y.  Supp.  41. 

959,  n.  171.     Sanford  v.  Rhoads,  39  Misc.  548,  80  N.  Y.  Supp. 


APPENDIX.  4109 

404 ;  Jaeger  v.  City  of  N.  Y.,  39  Misc.  543,  80  N.  Y.  Supp.  356 ; 
Carpenter  v.  Mergert,  39  Misc.  634,  80  N.  Y.  Supp.  615 ;  Uggla 
v.  Brokaw,  77  App.  Div.  310,  79  N.  Y.  Supp.  244 ;  Eells  v.  Du- 
mary,  84  App.  Div.  105,  82  N.  Y.  Supp.  531 ;  Leonorovitz  v.  Ott, 
40  Misc.  551,  82  N.  Y.  Supp.  880.  But  in  Rogers  v.  Morton,  46 
Misc.  494,  95  N.  Y.  Supp.  49,  it  is  held  that  specific  denials  in  a 
defense  are  not  necessarily  surplusage  or  immaterial,  since  it 
may  be  necessary  to  deny  specific  allegations  of  the  complaint 
which  would  otherwise  be  admitted. 

959,  n.  172.  Wormser  v.  Metropolitan  St.  R.  Co.,  98  App.  Div. 
29,  90  N.  Y.  Supp.  714. 

960,  n.  174.  Hawkins  v.  Mapes-Reeve  Const.  Co.,  178  N.  Y. 
236,  241,  which  affirms  82  App.  Div.  72,  80,  81  N.  Y.  Supp.  794. 

960,  n.  178.  It  must  show  that  the  former  suit  was  pending 
when  the  second  action  was  commenced.  Hirsh  v.  Manhattan 
R.  Co.,  84  App.  Div.  374,  377,  82  N.  Y.  Supp.  754. 

960,  n.  179.  Wenk  v.  City  of  N.  Y.  is  officially  reported  in  82 
App.  Div.  584. 

961,  n.  182.  Partial  defenses  are  not  limited  to  the  actions 
enumerated.  Gabay  v.  Doane,  77  App.  Div.  413,  79  N.  Y.  Supp. 
312.  This  Code  section  was  not  intended  to  apply  to  an  action 
in  equity  asking  for  discretionary  relief,  where  a  defendant  sets 
up  facts  which  he  will  ask  the  court  to  consider  in  determining 
the  relief  to  be  granted.  Straus  v.  American  Publishers'  Ass'n, 
103  App.  Div.  277,  92  N.  Y.  Supp.  1052. 

961,  n.  184.  Mott  v.  De  Nisco,  106  App.  Div.  154,  94  N.  Y. 
Supp.  380. 

962.  In  an  action  to  recover  for  services,  the  defense  was 
that  it  had  been  agreed  that  a  sum  to  be  fixed  by  defendant 
should  be  received  in  satisfaction  of  the  services,  but  that 
plaintiff  had  refused  to  accept  the  sum  as  fixed,  is  a  partial  de- 
fense, where  there  was  no  tender  nor  was  the  money  brought 
into  court.  Butler  v.  General  Ace.  Assur.  Corp.,  103  App.  Div. 
273,  92  N.  Y.  Supp.  1025.  A  separate  defense,  in  an  equitable 
suit  alleging  facts  which  existed  at  the  time  the  pleading  was 
made,  though  interposed  after  a  determination  on  appeal  of  a 
demurrer  to  the  complaint,  need  not  be  pleaded  as  a  partial  de- 
fense. Straus  v.  American  Publishers'  Ass'n,  45  Misc.  251,  92 
N.  Y.  Supp.  153. 


HI,,  APPENDIX. 

965,  u.  210.  Mott  v.  De  Nisco,  94  N.  Y.  Supp.  380 ;  Singer  v. 
Abrams,  47  Misc.  360,  94  N.  Y.  Supp.  7;  Barnard  v.  Lawyers' 
Title  Ins.  Co.,  45  Misc.  577,  91  N.  Y.  Supp.  41. 

968.  ('ailing  a  counterclaim  a  set-off  does  not  make  it  so. 
S.  Liebmann's  Sons  Brewing  Co.  v.  De  Nicolo,  91  N.  Y.  Supp. 
791. 

971.  A  possible  but  unestablished  liability  which  is  unliqui- 
dated in  amount  cannot  be  set  up  against  a  liquidated  legal 
claim  that  is  due  and  payable.  Dunn  v.  Uvalde  Asphalt  Pav. 
Co.,  175  N.  Y.  214. 

972,  u.  245.  But  this  rule  does  not  prevent  defendant  from 
denying  its- liability  or  default  on  a  contract  and  then  set  up 
as  a  counterclaim  the  default  of  the  plaintiff.  Hudson  River 
P.  T.  Co.  v.  United  Traction  Co.,  43  Misc.  205. 

972,  n.  248.  Williams  v.  Clarke,  82  App.  Div.  199,  81  N.  Y. 
Supp.  381.  See,  also,  Hudson  River  P.  T.  Co.  v.  United  Traction 
Co.,  98  App.  Div.  568,  91  N.  Y.  Supp.  179. 

974,  n.  260.  In  an  action  against  a  firm,  one  partner  cannot 
set  up  a  personal  claim  as  a  counterclaim.  Hunter  v.  Booth, 
84  App.  Div.  585,  82  N.  Y.  Supp.  1000. 

975,  In  an  action  for  dower  in  land  conveyed  by  the  hus- 
band by  a  deed  in  which  the  wife  did  not  join,  a  counterclaim 
cannot  be  set  up  for  damages  for  the  amount  of  such  dower  in- 
terest, though  the  wife  is  the  sole  legatee  and  devisee.  Burnett 
v.  Burnett,  86  App.  Div.  386,  83  N.  Y.  Supp.  760. 

976,  n.  268.  Lundine  v.  Callaghan,  82  App.  Div.  621,  626,  81 
N.  Y.  Supp.  1052;  George  A.  Fuller  Co.  v.  Manhattan  Const. 
Co.,  44  Misc.  219,  88  N.  Y.  Supp.  1049.  In  an  action  on  notes 
given  in  payment  for  stock  of  a  corporation,  defendant  cannot 
set  up  a  counterclaim  for  damages  from  misrepresentations  as 
to  the  financial  condition  of  the  corporation.  Story  v.  Richard- 
son, 91  App.  Div.  381,  86  N.  Y.  Supp.  843. 

977,  n.  275.  In  an  action  ex  delicto  to  recover  for  the  conver- 
sion of  rents  collected  by  defendant  as  the  agent  of  plaintiff, 
a  counterclaim  is  not  allowable  which  sets  up  a  demand  for  the 
use  and  occupation  of  premises  let  by  defendant  to  plaintiff. 
Frick  v.  Freudenthal,  45  Misc.  348,  90  N.  Y.  Supp.  344. 

977,  n.  276.  In  an  action  for  conversion  of  money,  a  counter- 
claim to  recover  margins  deposited  to  secure  a  purchase  of 


APPENDIX.  4U1 

stock  ordered  but  not  purchased  is  proper.  O'Brien  v.  Dwyer, 
76  App.  Div.  516,  78  N.  Y.  Supp.  600. 

977,  n.  277.     Benton  v.  Moore,  42  Misc.  660,  87  Supp.  717. 

979,  n.  296.  This  definition  of  Mr.  Pomeroy's  is  adopted  in 
Steinmetz  v.  Cosmopolitan  Range  Co.,  47  Misc.  611,  94  N.  Y. 
Supp.  456. 

982,  n.  314.  See,  also,  Bayne  v.  Hard,  77  App.  Div.  251,  79 
N.  Y.  Supp.  208. 

982,  n.  315.  See,  also,  Silver  v.  Krellman,  89  App.  Div.  363, 
85  N.  Y.  Supp.  945. 

982,  n.  316.  See,  also,  Hunter  v.  Fiss,  92  App.  Div.  164,  86 
N.  Y.  Supp.  1121. 

984.  A  counterclaim  must  be  treated  as  a  separate  plea,  and 
upon  demurrer  thereto  the  defendant  is  not  even  entitled  to 
the  benefit  of  denials  made  elsewhere  in  the  answer,  unless  in- 
corporated in  the  separate  plea  by  reiteration  or  appropriate 
reference.  Blaut  v.  Blaut,  41  Misc.  572,  85  N.  Y.  Supp.  146; 
Gray  Lithograph  Co.  v.  American  Watchman's  Time  Detector 
Co.,  44  Misc.  206,  88  N.  Y.  Supp.  857;  Goldberg  v.  Wood,  45 
Misc.  327,  90  N.  Y.  Supp.  427. 

984,  n.  328.  Mason  v.  Mason,  46  Misc.  361,  94  N.  Y.  Supp. 
868. 

984,  n.  329.  Gilsey  v.  Keen,  104  App.  Div.  427,  93  N.  Y.  Supp. 
783.  So  if  defendant  defines  it  as  a  counterclaim  he  cannot  in- 
sist on  its  sufficiency  as  a  defense.  Rogers  v.  Morton,  46  Misc. 
494,  95  N.  Y.  Supp.  49. 

988,  n.  5.  Babcock  v.  Clark,  93  App.  Div.  119,  121,  86  N.  Y. 
Supp.  976 ;  Spier  v.  Hyde,  78  App.  Div.  151,  157,  79  N.  Y.  Supp. 
699. 

989.  A  reply  will  not  be  compelled  where  the  answer  merely 
contains  statements  denying  what  the  plaintiff  must  prove  in 
order  to  succeed.  Burr  v.  Union  Surety  &  Guaranty  Co.,  86 
App.  Div.  545,  83  N.  Y.  Supp.  756.  But  a  reply  is  properly  or- 
dered in  ejectment  where  defendant  alleges  title  by  purchase 
at  foreclosure  sale,  in  order  to  enable  defendant  to  prepare 
for  trial.    Timble  v.  Russell,  41  Misc.  577,  85  N.  Y.  Supp.  109. 

989,  n.  13.  It  is  only  where  the  substantial  ends  of  justice 
will  be  promoted  thereby  that  the  service  of  a  reply  will  be 


4H2  APPENDIX. 

compelled.  Eallenborg  v.  Greene,  87  App.  Div.  259,  84  N.  Y. 
Supp.  319 ;  Pope  Mfg.  Co.  v.  Rubber  Goods  Mfg.  Co.,  100  App. 
Div.  514,  9]  N.  Y.  Supp.  831. 

990,  n.  26.  The  phrase  "in  ordinary  and  concise  language, 
without  repetition"  was  changed  by  Laws  1904,  c.  500,  to 
"clear,  precise  and  unequivocal  language,"  but  was  again 
changed  to  its  original  form  by  Laws  1905,  c.  431.  A  reply  was, 
in  part,  as  follows:  "49.  Plaintiff  reiterates  the  allegations  and 
denials  contained  in  paragraphs  1,  5,  6,  7,  8,  9,  10  and  11  of  this 
reply,"  etc.  "50.  It  admits  the  allegations  contained  in  the  ar- 
ticles or  paragraphs  of  the  answer  designated  as  (32),  (47), 
(48),  (103),  (104),  (105),  (106,)  (107)  and  (109)."  "51.  It 
denies  each  and  every  allegation  contained  in  the  articles  or 
paragraphs  of  the  answer  designated  as  (14),  (20),  (21),  (25), 
(26),  (27),  (28),  (30),  (136),  and  (138)."  It  was  held  to  vio- 
late the  Code  rule  requiring  the  matter  averred  to  be  stated 
in  clear  and  concise  language.  Pope  Mfg.  Co.  v.  Rubber  Goods 
Mfg.  Co.,  100  App.  Div.  349,  91  N.  Y.  Supp.  828. 

991.  The  reply  cannot  contain  a  counterclaim  to  a  counter- 
claim set  up  in  the  answer,  but  plaintiff  must  seek  relief  by  an 
amendment  to  his  complaint.  Fett  v.  Greenstein,  92  N.  Y. 
Supp.  736. 

991,  n.  29.  Followed  in  Perry  v.  Levenson,  82  App.  Div.  94, 
101,  81  N.  Y.  Supp.  586. 

991,  n.  35.  Averments  of  matter  contained  in  the  reply,  if 
inconsistent  with  the  complaint,  cannot  be  availed  of  by  the 
plaintiff  as  a  part  of  its  affirmative  cause  of  action.  Pope  Mfg. 
Co.  v.  Rubber  Goods  Mfg.  Co.,  100  App.  Div.  349,  91  N.  Y.  Supp. 
828. 

995,  n.  16.  Failure  to  add  to  the  statement  of  the  repre- 
sentative character  of  the  defendants  the  words  "as  trustees" 
in  addition  to  the  words  "as  executors,"  is  not  a  sufficient  rea- 
son for  sustaining  a  demurrer  to  the  complaint,  especially  where 
the  complaint  contains  a  copy  of  the  will,  and  further  allega- 
tions showing  that  as  executors  the  defendants  have  accepted 
the  trusts  created  by  the  will.  Rowe  v.  Rowe,  103  App.  Div. 
100,  92  N.  Y.  Supp.  491. 

997,  n.  24.     So  held  where  the  action  was  against  a  foreign 


APPENDIX.  4113 

corporation  and  the  complaint  contained  no  allegations  as  to 
where  plaintiff  resided.  Herbert  v.  Montana  Diamond  Co., 
81  App.  Div.  212,  80  N.  Y.  Supp.  717. 

998,  n.  36.  Tew  v.  Wolfsohn,  77  App.  Div.  454,  79  N.  Y. 
Supp.  286 ;  Hall  v.  Gilman,  77  App.  Div.  458,  464,  79  N.  Y.  Supp. 
303,  307.    A  demurrer  does  not  lie  for  multifariousness.    Id. 

998,  n.  38.  This  rule  also  applies  where  the  defect  is  set  up 
by  answer.  Shanks  v.  National  Casket  Co.,  95  App.  Div.  187, 
88  N.  Y.  Supp.  839. 

999,  n.  44.  Where  misjoinder  of  causes  of  action  was  raised 
by  a  motion  to  compel  plaintiff  to  separate  and  number  the 
causes  of  action,  and  defendants  did  not  appeal  from  an  ad- 
verse ruling  thereon,  they  were  not  entitled  thereafter  to  raise 
such  objection  by  demurrer.  O'Connor  v.  Virginia  Passenger 
&  Power  Co.,  92  N.  Y.  Supp.  525. 

999,  n.  45.  Reed  v.  Livermore,  101  App.  Div.  254,  91  N.  Y. 
Supp.  986.  A  demurrer  for  misjoinder  is  proper,  where  there 
is  only  a  single  count,  without  first  moving  to  compel  the  causes 
of  action  to  be  separately  stated.  Powers  v.  Sherin,  89  App. 
Div.  37,  85  N.  Y.  Supp.  89.  But  see  Whitney  v.  Wenman,  96 
App.  Div.  290,  293,  89  N.  Y.  Supp.  296. 

999,  n.  49.  The  rule  laid  down  in  the  text  is  overruled  by  the 
court  of  appeals  which  holds  that  to  sustain  a  demurrer  on  the 
ground  of  improper  joinder  of  causes  of  action,  there  must  be 
two  or  more  causes  of  action  plainly  stated,  each  in  itself  com- 
plete and  perfect  on  a  fair  and  reasonable  construction  of  the 
language  employed.  Tew  v.  Wolfsohn,  174  N.  Y.  272,  followed 
in  Mack  v.  Latta,  83  App.  Div.  242,  252,  82  N.  Y.  Supp.  130. 

999,  n.  50.  Cannot  be  set  up  as  a  defense  in  the  answer  or 
reply.     Schlesinger  v.  Thalmessinger,  92  N.  Y.  Supp.  575. 

1000,  n.  53.  Hall  v.  Gilman,  77  App.  Div.  458,  461,  79  N.  Y. 
Supp.  302;  Budd  v.  Howard  Thomas  Co.,  40  Misc.  52,  81  N.  Y. 
Supp.  152;  Wallace  v.  Jones,  182  N.  Y.  37. 

1000,  n.  57.  Cited  in  Seamans  v.  Barentsen,  180  N.  Y.  333, 
336,  but  disapproved  in  so  far  as  the  dicta  holds  that  the  objec- 
tion "must"  be  raised  by  demurrer. 

1000,  n.  59.     Woolf  v.  Barnes,  46  Misc.  169,  93  N.  Y.  Supp. 
219;  Schenectady  Contracting  Co.  v.  Schenectady  R.  Co.,  106 
App.  Div.  336,  94  N.  Y.  Supp.  401. 
N.  Y.  Prac— 258. 


4114  APPENDIX. 

1001,  n.  61.  See,  as  contra,  Corscadden  v.  Haswell,  88  App. 
Div.  158,  161,  84  N.  Y.  Supp.  597. 

1001,  nn,  61,  62.  Where  there  are  no  facts  appearing  in  the 
complaint  which  would  warrant  the  relief  asked  for  therein, 
or  any  part  thereof,  though  the  facts  do  warrant  relief  not  con- 
templated by  plaintiff,  a  demurrer  will  be  sustained.  Has- 
brouck  v.  New  Paltz,  H.  &  P.  Traction  Co.,  98  App.  Div.  563,  90 
N.  Y.  Supp.  977. 

1001,  n.  66.  Zebley  v.  Farmers'  Loan  &  Trust  Co.,  139  N.  Y. 
461. 

1001,  n.  70.  Stating  facts  in  the  alternative,  where  any  one 
of  the  averments  would  be  sufficient  on  which  to  found  the  re- 
lief asked  for,  is  not  a  ground  of  demurrer,  but  if  they  are  un- 
certain the  remedy  is  by  motion.  Hasberg  v.  Moses,  81  App. 
Div.  199,  205,  80  N.  Y.  Supp.  867.  A  complaint  in  an  action 
against  a  master  to  recover  damages  for  death  by  wrongful 
act  is  not  demurrable  because  it  alleges  that  death  was  caused 
hy  defendant's  negligence  without  stating  the  facts  to  show 
negligence,  though  it  might  be  subject  to  a  motion  to  make 
more  definite  and  certain.  Ellsworth  v.  Franklyn  County  Agr. 
Soc,  99  App.  Div.  119,  91  N.  Y.  Supp.  1040. 

1002,  n.  77.  Onderdonk  v.  Peale,  Peacock  &  Kerr,  104  App. 
Div.  195,  93  N.  Y.  Supp.  505. 

1002,  n.  79.  Uggla  v.  Brokaw,  77  App.  Div.  310,  313,  79  N. 
Y.  Supp.  244. 

1003.  Matter  set  up  as  defense  is  demurrable  where  it  con- 
stitutes no  bar  to  the  action,  though  it  might  be  available  as  a 
counterclaim.  Farmers'  Nat.  Bank  v.  St.  Regis  Paper  Co.,  77 
App.  Div.  558,  78  N.  Y.  Supp.  889.  A  demurrer  to  the  defense 
of  statute  of  limitations  lies  where  the  insufficiency  of  the  plea 
is  clearly  apparent.  Gray  Lith.  Co.  v.  American  Watchman's 
Time  Detector  Co.,  44  Misc.  206,  88  N.  Y.  Supp.  857.  Where  a 
defendant,  brought  in  by  supplemental  summons,  sets  up  in  his 
answer  objections  to  the  sufficiency  of  the  amended  complaint 
under  section  498  of  the  Code,  it  may  be  demurred  to  as  a  de- 
fense.   Nellis  v.  Rowles,  41  Misc.  313,  84  N.  Y.  Supp.  753. 

1003,  n.  84.  If  the  facts  alleged  in  an  answer  have  relation 
to  the  subject-matter,  and  are  calculated  to  affect  the  action 


APPENDIX.  4115 

of  the  court  in  determining  whether  an  injunction  should  be 
granted,  or  its  extent  if  one  is  granted,  the  effect  that  will  be 
given  to  them  cannot  be  determined  on  demurrer.  Straus  v. 
American  Publishers'  Ass'n,  103  App.  Div.  277,  92  N.  Y.  Supp. 
1052.  When  a  defense  consists  of  facts  which  the  defendant 
will  prove  upon  the  trial  to  affect  the  extent  of  discretionary  re- 
lief that  a  court  of  equity  will  grant,  it  is  not  insufficient,  upon 
the  face  thereof,  even  though  it  would  appear  upon  an  inspec- 
tion of  the  pleadings  that  the  facts  alleged  would  not  in  them- 
selves be  sufficient  to  justify  the  court  in  refusing  the  plaint- 
iff any  relief.    Id. 

1003,  n.  85.  Butler  v.  General  Ace.  Assur.  Corp.,  103  App. 
Div.  273,  92  N.  Y.  Supp.  1025. 

1003,  n.  90.  Uggla  v.  Brokaw,  77  App.  Div.  310,  315,  79  N. 
Y.  Supp.  244.  Kraus  v.  Agnew  is  officially  reported  in  80  App. 
Div.  1.  The  contrary,  i.  e.,  that  a  so-called  "defense"  which 
sets  up  no  new  matter  other  than  that  put  in  issue  by  a  denial 
is  demurrable  because  it  is  "insufficient  in  law  on  the  face 
thereof,"  is  held  in  George  v.  City  of  N.  Y.,  42  Misc.  270,  86 
N.  Y.  Supp.  610;  Blumenfeld  v.  Stine,  42  Misc.  411,  87  N.  Y. 
Supp.  81;  Jaeger  v.  City  of  N.  Y.,  39  Misc.  543,  80  N.  Y. 
Supp.  356. 

1003,  n.  92.  The  Olivella  case  was  affirmed  in  51  App.  Div. 
612,  64  N.  Y.  Supp.  1145,  on  the  authority  of  Golden  v.  Health 
Dept.,  21  App.  Div.  420,  47  N.  Y  Supp.  623,  and  was  followed 
in  Edmonds  v.  Stern,  89  App.  Div.  539,  85  N.  Y.  Supp.  665, 
which  fix  the  rule,  at  least  in  the  first  department,  that  where 
the  complaint  is  purely  equitable  in  its  nature  and  only  equi- 
table relief  can  be  afforded,  a  defense  that  there  is  an  adequate 
remedy  at  law  is  demurrable. 

1003,  n.  93.  So  held  in  Corn  v.  Levy,  97  App.  Div.  48,  89 
X.  Y.  Supp.  658,  which  reviews  the  conflicting  decisions. 

1003,  n.  94.  Uggla  v.  Brokaw,  77  App.  Div.  310,  313,  79  N. 
Y.  Supp.  244;  Holmes  v.  Northern  Pac.  R.  Co.,  65  App.  Div. 
49,  72  N.  Y.  Supp.  476 ;  Blaut  v.  Blaut,  41  Misc.  572,  85  N.  Y. 
Supp.  146. 

1004,  n.  97.  But  where,  in  an  action  for  slander,  matters  in 
justification  are  set  forth  as  a  complete  defense  and  matters  in 


4110  APPENDIX. 

mitigation  as  a  partial  defense,  plaintiff  may  demur  solely  to 
thai  part  of  the  answer  setting  up  justification.  Jansen  v. 
Fischer,  45  Misc.  361,  90  N.  Y.  Supp.  346. 

1004,  n.  99.  A  counterclaim  which  demands  an  affirmative 
judgment  is  not  demurrable  on  the  ground  that  "it  is  insuffi- 
cient in  law  on  the  face  thereof. ' '  Hudson  River  Water  Power 
Co.  v.  Glens  Falls  Gas  &  E.  L.  Co.,  90  App.  Div.  513,  85  N.  Y. 
Supp.  577. 

1005,  n.  108.  Schilling  Co.  v.  Robert  H.  Reid  &  Co.,  42  Misc. 
94,  85  N.  Y.  Supp.  1010. 

1005,  n.  109.  Warner  v.  James,  88  App.  Div.  567,  85  N.  Y. 
Supp.  153. 

1011.  The  sufficiency  of  a  pleading  to  which  a  demurrer  is 
interposed  should  not  be  determined  on  a  concession  which 
forms  no  part  of  the  record,  and  is  not  incorporated  in  the 
pleading  by  an  appropriate  amendment.  Keene  v.  Newark 
Watch  Case  Material  Co.,  81  App.  Div.  48,  80  N.  Y.  Supp.  859. 
On  demurrer  to  a  counterclaim,  defendant  cannot  urge  its 
sufficiency  as  a  defense.  Rogers  v.  Morton,  46  Misc.  494,  95 
N.  Y  Supp.  49. 

1011,  n.  149.  Mott  v.  De  Nisco,  106  App.  Div.  154,  94  N.  Y. 
Supp.  380;  Blumenfeld  v.  Stine,  42  Misc.  411,  87  N.  Y.  Supp.  81. 

1012,  n.  158.  A  demurrer  to  the  whole  answer  should  be 
overruled  if  there  is  an  issue  raised  by  any  of  the  denials  or 
allegations.  George  A.  Fuller  Co.  v.  Manhattan  Const.  Co., 
44  Misc.  219,  88  N.  Y.  Supp.  1049. 

1012,  n.  159.  A  demurrer,  for  insufficiency,  to  new  matter  in 
the  answer,  requires  that  it,  as  well  as  the  matter  alleged  in 
the  complaint  to  which  the  answer  refers,  be  taken  as  admitted. 
Schlesinger  v.  Burland,  42  Misc.  206,  208,  85  N.  Y  Supp.  350. 

1012,  n.  163.  Petty  v.  Emery,  96  App.  Div.  35,  88  N.  Y.  Supp. 
823. 

1013,  n.  177.  Bigelow  v.  Drummond,  42  Misc.  617,  620,  87 
N.  Y.  Supp.  581. 

1014,  n.  180.  George  v.  City  of  N.  Y.,  42  Misc.  270,  274,  86 
N.  Y.  Supp.  610;  Bigelow  v.  Drummond,  42  Misc.  617,  87  N.  Y. 
Supp.  581. 

1016,  n.  199.  Where  the  overruling  of  a  demurrer  with  leave 
to  plead  over  is  affirmed  by  the  appellate  division  without 


APPENDIX.  4117 

granting  such  leave,  an  application  for  leave  to  plead  over  can 
be  made  only  to  the  appellate  division.  White  v.  Jackson,  39 
Misc.  218,  79  N.  Y.  Supp.  393. 

1019.  In  the  second  line  in  the  last  form,  change  the  words 
"found  by  plaintiff"  to  "formed  by  plaintiff's  complaint." 

1019,  n.  220.  The  judgment  should  follow  the  order  or  de- 
cision. It  should  not  direct  that,  in  case  of  failure  to  plead 
over,  judgment  be  entered  for  the  sum  demanded  in  the  com- 
plaint. It  should  provide  that,  in  case  of  failure  to  plead  over, 
final  judgment  may  be  entered  in  accordance  with  the  provis- 
ions of  the  Code  of  Civil  Procedure  applicable  in  such  cases. 
Smythe  v.  Greacen,  96  App.  Div.  182,  89  N.  Y.  Supp.  111. 

1024,  nn.  28,  29.  There  is  no  question  but  what  service  by 
mail  gives  the  "opposing"  party  double  time  to  serve  an 
amended  pleading  as  of  course.  Bucklin  v.  Buffalo,  A.  &  A. 
R.  Co.,  41  Misc.  557,  85  N.  Y.  Supp.  114. 

1024,  n.  29.  Contra,  Bates  v.  Plasmon  Co.,  41  Misc.  16,  88 
N.  Y.  Supp.  573. 

1025,  n.  42.  To  show  that  the  amended  pleading  was  served 
for  purpose  of  delay,  threats  to  use  dilatory  tactics  if  a  prop- 
osition for  settlement  of  the  cause  of  action  was  not  accepted 
are  properly  considered.  Naylor  v.  Loomis,  79  App.  Div.  21, 
79  N.  Y.  Supp.  1011. 

1025,  n.  43.  "Where  plaintiff  served  a  notice  of  trial  before 
answer,  pursuant  to  an  order  of  court  granting  an  extension  of 
the  time  to  answer  on  condition  that  the  issue  be  as  of  the  date 
the  answer  was  originally  due,  and  thereafter  defendant  served 
an  amended  answer  as  of  course,  it  was  improper  to  strike  out 
the  amended  answer  unless  defendant  consented  that  the  date 
of  issue  remain  as  if  no  amended  answer  had  been  served. 
Muglia  v.  Erie  R.  Co.,  97  App.  Div.  532,  90  N.  Y.  Supp.  216. 

1026,  n.  50.  That  the  granting  of  the  order  is  discretionary, 
see  Westinghouse,  Church,  Kerr  &  Co.  v.  Remington  Salt  Co., 
89  App.  Div.  126,  85  N.  Y.  Supp.  432. 

1027,  An  unnecessary  amendment  will  not  be  allowed.  Le 
Brantz  v.  Campbell,  89  App.  Div.  583,  85  N.  Y.  Supp.  654.  So 
held  where  act  sought  to  be  enjoined  was  discontinued  before 
trial  and  plaintiff  sought  to  amend  by  striking  out  demand  for 
injunctive  relief.    Whaley  v.  City  of  N.  Y.,  83  App.  Div.  6,  81 


4-118  APPENDIX. 

N.  Y.  Supp.  1043.  So  leave  will  not  be  given  to  serve  an 
amended  answer  setting  up  as  special  defenses  facts  provable 
under  the  general  denial  already  pleaded.  Schultz  v.  Green- 
wood Cemetery,  46  Misc.  299,  93  N.  Y.  Supp.  180.  A  defense  re- 
ferring to  another  defense  for  certain  of  its  facts  may  set  forth 
such  facts  in  full  in  an  amended  answer  even  after  they  have, 
on  motion,  been  stricken  out  of  the  defense  referred  to.  Edison 
v.  Press  Pub.  Co.,  85  App.  Div.  376,  83  N.  Y.  Supp.  174. 

1028,  nn.  72,  73.  A  motion  before  a  referee  made  on  the  first 
day  for  the  hearing  and  decided  at  the  next  hearing  cannot  be 
said  to  be  made  before  the  trial.  Barnum  v.  Williams,  91  App. 
Div.  464,  467,  86  N.  Y.  Supp.  821. 

1029.  Leave  to  amend  is  properly  denied,  where  the  amend- 
ment would  have  imported  into  the  trial,  and  near  its  close,  an 
issue  which  was  not  suggested  in  the  pleadings,  and  one  which 
the  defendant,  according  to  his  attorney,  was  not  prepared  to 
try,  especially  where  the  fact  that  the  issue  sought  to  be  intro- 
duced by  amendment  was  not  presented  by  the  pleadings,  was 
called  to  the  attention  of  the  plaintiff's  attorney  by  the  trial 
justice,  who  at  the  same  time  suggested  to  him  that  he  with- 
draw a  juror,  and  apply  at  special  term  for  leave  to  amend  the 
complaint  in  the  respects  desired,  and  in  such  a  way  that  the 
action  could  be  tried  in  equity,  where  full  justice  could  be  done 
between  the  parties,  and  the  attorney  refused  so  to  do.  Kuntz 
v.  Schnugg,  99  App.  Div.  191,  90  N.  Y.  Supp.  933. 

1029,  n.  76.  Eosseau  v.  Rouss,  91  App.  Div.  230,  233,  86  N. 
Y.  Supp.  497.  Negligence  and  nuisance  are  different  causes  of 
action.  Moniot  v.  Jackson,  40  Misc.  197,  81  N.  Y.  Supp.  688. 
New  defense  cannot  be  set  up  by  amendment  on  the  trial.  Rob- 
inson v.  Lampel,  97  App.  Div.  198,  89  N.  Y.  Supp.  853. 

1030,  n.  83.  This  case  is  criticized  in  Schun  v.  Brooklyn 
Heights  R.  Co.,  82  App.  Div.  560,  81  N.  Y.  Supp.  859,  and  the 
court  refuses  to  follow  it  in  so  far  as  it  holds  that  a  plaintiff 
cannot,  by  amendment  after  issue  joined,  add  a  third  joint  tort 
feasor  as  a  party  defendant. 

1031,  Facts  which,  under  a  recent  decision  of  the  court  of 
appeals,  plaintiff  deems  necessary  to  add  to  insure  the  reten- 
tion of  jurisdiction  of  the  action  by  the  supreme  court,  may  be 
set  up  by  amendment.     Meeks  v.  Meeks,  79  App.  Div.  49,  79 


APPENDIX.  4119 

N.  Y.  Supp.  718.  The  complaint  may  be  amended  by  specify- 
ing the  charge  of  negligence  with  greater  detail  (Straus  v. 
Buchman,  96  App.  Div.  270,  89  N.  Y.  Supp.  226)  ;  or  by  sub- 
stituting for  an  allegation  of  full  performance  of  the  contract 
an  allegation  of  part  performance  and  an  excuse  for  the  non- 
performance (Barnum  v.  Williams,  91  App.  Div.  464,  86  N.  Y. 
Supp.  821)  ;  or  so  as  to  permit  a  recovery  of  the  damages  re- 
sulting from  the  breach  of  the  contract  intermediate  the  com- 
mencement of  the  action  and  the  trial  thereof  (Dunham  v.  Hast- 
ings Pavement  Co.,  95  App.  Div.  360,  362,  88  N.  Y.  Supp.  835) ; 
or  so  as  to  allege  the  substitution  of  other  materials  in  place 
of  those  called  for  by  the  contract  (Poersehke  v.  Horowitz,  84 
App.  Div.  443,  82  N.  Y.  Supp.  742). 

1032.  An  amendment  is  proper  to  conform  the  complaint  to 
the  proof  as  to  date  of  the  injury  sued  for,  where  defendant 
makes  no  claim  of  surprise.  Ladrick  v.  Village  of  Green  Island, 
103  App.  Div.  71,  92  N.  Y.  Supp.  622.  The  allegation  that  no- 
tice of  intention  to  sue  was  given  to  the  corporation  counsel 
may  be  amended  to  conform  to  the  proof  by  adding  "prior  to 
the  commencement  of  the  action."  Shaw  v.  City  of  N.  Y.,  83 
App.  Div.  212,  214,  82  N.  Y.  Supp.  44. 

1032,  n.  98.  Clark  v.  Brooklyn  Heights  R.  Co.,  78  App.  Div. 
478,  79  N.  Y.  Supp.  811.  The  amendment  may  be  allowed  at 
the  close  of  the  trial.  Dunham  v.  Hastings  Pavement  Co.,  95 
App.  Div.  360,  363,  88  N.  Y.  Supp.  835. 

1032,  n.  99.  Smith  v.  City  of  Auburn,  88  App.  Div.  396,  84 
N.  Y.  Supp.  725;  Scarry  v.  Metropolitan  St.  R.  Co.,  39  Misc. 
802,  81  N.  Y.  Supp.  284. 

1032,  n.  101.  See,  also,  Carlisle  v.  Barnes,  102  App.  Div.  582, 
92  N.  Y.  Supp.  924. 

1033,  n.  107.  Rowe  v.  Gerry,  86  App.  Div.  349,  83  N.  Y. 
Supp.  740 ;  Zeiser  v.  Cohn,  44  Misc.  462,  474,  90  N.  Y.  Supp.  66 ; 
Page  v.  Delaware  &  H.  Canal  Co.,  76  App.  Div.  160,  78  N.  Y. 
Supp.  454. 

1033,  n.  111.  Zeiser  v.  Cohn,  44  Misc.  462,  474,  90  N.  Y. 
Supp.  66. 

1035,  n.  124.  Coyle  v.  Davidson,  42  App.  Div.  322,  86  N.  Y. 
Supp.  1089.     An  amendment  which  merely  amplifies  the  com- 


4120  APPENDIX. 

plaint  by  setting  forth  more  fully  the  grounds  on  which  the  de- 
fendant is  liable,  and  the  items  of  damage,  is  proper.    Id. 

1035,  §  904.  The  special  term  has  power,  after  jthe  entry  of 
an  interlocutory  judgment  and  during  the  pendency  of  a  ref- 
erence directed  by  such  interlocutory  judgment,  to  allow  an 
amendment  of  the  complaint,  by  enlarging  the  cause  of  action, 
but  in  such  case  all  proceedings  fall  and  a  new  trial  under  the 
amended  complaint  is  necessary.  Wilson  v.  Standard  Asphalt 
Co.,  81  App.  Div.  102,  81  N.  Y.  Supp.  8. 

1036,  The  statute  of  limitations,  where  it  operates  on  the  lia- 
bility and  not  merely  on  the  remedy,  may  be  allowed  to  be  in- 
terposed by  amendment  before  a  second  trial.  Colell  v.  Dela- 
ware L.  &  W.  R.  Co.,  80  App.  Div.  342,  80  N.  Y.  Supp.  675. 
Amendment  of  complaint  by  appellate  court,  see  Thrall  v.  Cuba 
Village,  88  App.  Div.  410,  415,  84  N.  Y.  Supp.  661.  The  appel- 
late court  cannot  amend  to  conform  to  the  proof  where  evi- 
dence was  objected  to  in  lower  court  as  not  admissible  under 
the  pleadings.  Page  v.  Delaware  &  H.  Canal  Co.,  76  App.  Div. 
160,  78  N.  Y.  Supp.  454. 

1037,  n.  141.  Electric  Boat  Co.  v.  Howey,  88  App.  Div.  522, 
85  N.  Y.  Supp.  95. 

1037,  n.  146.  But  see  Bailey  v.  Kraus,  39  Misc.  845,  81  N.  Y. 
Supp.  492.  Where  the  motion,  made  before  trial,  was  denied 
for  laches,  it  should  not  thereafter  be  granted  after  a  reversal 
of  the  judgment  on  appeal.  A.  &  S.  Henry  &  Co.  v.  Talcott,  89 
App.  Div.  76,  85  N.  Y.  Supp.  98. 

1037,  n.  148.  It  is  not  necessarily  error  to  permit  an  amend- 
ment "at  the  trial,"  to  set  up  special  damages,  where  defend- 
ant chooses  to  proceed  instead  of  asking  for  a  postponement  of 
the  trial  and  excepting  to  the  ruling  if  the  motion  was  denied. 
Werner  v.  Hearst,  76  App.  Div.  375,  384,  78  N.  Y.  Supp.  788. 

1037,  n.  149.  See,  also,  Coyle  v.  Davidson,  92  App.  Div.  322, 
325,  86  N.  Y.  Supp.  1089. 

1038.  The  attorney  should  make  the  affidavit,  instead  of  the 
client,  where  the  inadvertence  or  neglect  sought  to  be  excused 
is  that  of  the  attorney.  Kent  v.  ^Etna  Ins.  Co.,  88  App.  Div. 
518,  85  N.  Y.  Supp.  164. 

1038,  n.  151.     Service  of  amended  pleading,  by  leave  of  court, 


APPENDIX.  4121 

after  the  hearing  of  the  application,  held  sufficient  in  Kent  v. 
.Etna  Ins.  Co.,  88  App.  Div.  518,  85  N.  Y.  Supp.  164. 

1038,  n.  152.  A.  &  S.  Henry  &  Co.  v.  Talcott,  89  App.  Div. 
76,  85  N.  Y.  Supp.  98;  Mutual  Loan  Ass'n  v.  Lesser,  81  App. 
Div.  138,  80  N.  Y.  Supp.  1112 ;  Kent  v.  ^tna  Ins.  Co.,  88  App. 
Div.  518,  85  N.  Y.  Supp.  164;  Treaclwell  v.  Clark,  45  Misc.  268, 
92  N.  Y.  Supp.  166. 

1038,  n.  154.  Pratt,  Hurst  &  Co.  v.  Tailer,  99  App.  Div.  236, 
90  N.  Y.  Supp.  1023;  Barnum  v.  Williams,  91  App.  Div.  464, 
468,  86  N.  Y.  Supp.  821;  Mutual  Loan  Ass'n  v.  Lesser,  81  App. 
Div.  138,  80  N.  Y.  Supp.  1112.  That  it  is  sufficient  to  refer  to 
proposed  amended  pleading  for  the  facts,  such  pleading  being 
on  information  and  belief  without  stating  the  sources  of  the  in- 
formation, see  Meeks  v.  Meeks,  79  App.  Div.  49,  79  N.  Y.  Supp. 
718. 

1039,  n.  161.  Want  of  knowledge  of  the  subject  of  the 
amendment  at  the  time  the  pleading  was  interposed  should  be 
shown.  Barnum  v.  Williams,  91  App.  Div.  464,  468,  86  N.  Y. 
Supp.  821. 

1039,  n.  162.  Two  years  delay  in  moving  was  held  excusable 
in  Blackburn  v.  American  News  Co.,  89  App.  Div.  82,  85  N.  Y. 
Supp.  440. 

1039,  n.  165.  Mutual  Loan  Ass'n  v.  Lesser,  81  App.  Div.  138, 
80  N.  Y.  Supp.  1112. 

1039,  n.  167.  The  official  citation  is  82  App.  Div.  145,  81  N. 
Y.  Supp.  701. 

1042,  n.  191.  Callahan  v.  New  York  Cent.  &  H.  R.  R.  Co.,  99 
App.  Div.  56,  90  N.  Y.  Supp.  657. 

1043,  n.  204.  On  allowing  an  amendment  of  the  complaint, 
payment  of  all  costs  after  the  service  of  the  complaint  should 
be  imposed.  Lindblad  v.  Lynde,  81  App.  Div.  603,  81  N.  Y. 
Supp.  351. 

1044,  The  fact  that  the  objection  which  appeared  on  the 
face  of  the  complaint  was  not  taken  by  demurrer  or  answer 
should,  it  seems,  be  taken  into  consideration  in  fixing  the  terms 
on  allowing  an  amendment  of  the  complaint.  Mooney  v.  Val- 
entine, 79  App.  Div.  41,  79  N.  Y.  Supp.  698.  Repayment  of 
costs  of  demurrer  held  improper  in  Kent  v.  y£tna  Ins.  Co.,  88 
App.  Div.  518,  85  N.  Y.  Supp.  164. 


4122  APPENDIX. 

1044,  n.  212.  Meeks  v.  Meeks,  79  App.  Div.  49,  79  N.  Y. 
Supp.  71S. 

1044,  n.  214.  Brans  v.  Brooklyn  Citizen,  98  App.  Div.  316, 
90  N.  Y.  Supp.  701. 

1044,  n.  215.  Fifty  dollars  imposed  as  condition  in  Steinbach 
v.  Prudential  Ins.  Co.,  92  App.  Div.  440,  87  N.  Y.  Supp.  107. 
Where  the  cause  of  action  was  not  changed,  fifty  dollars'  costs 
was  held  sufficient  in  Miller  v.  Carpenter,  79  App.  Div.  130,  80 
N.  Y.  Supp.  82. 

1045.  On  allowing  an  amendment  radically  changing  the 
cause  of  action,  the  defendant  should  be  relieved  from  his 
waiver  of  a  jury  trial.  Reese  v.  Baum,  83  App.  Div.  550,  82  N. 
Y.  Supp.  157.  Where  a  juror  is  withdrawn  and  plaintiff  al- 
lowed to  apply  at  special  term  for  an  amendment,  the  requiring, 
as  a  condition  of  allowing  an  amendment  in  effect  stating  a  new 
cause  of  action,  of  payment  of  only  ten  dollars  costs  and  com- 
pelling defendant  to  answer  in  five  days  and  restoring  the  case 
to  its  place  on  the  day  calendar  is  improper.  Payment  of  trial 
fee  in  addition  to  ten  dollars  costs,  twenty  days  to  answer,  and 
allowing  case  to  take  its  regular  place  on  the  calendar  but  not 
to  be  restored  to  the  day  calendar,  was  ordered  by  the  appel- 
late division.  Diebold  v.  Walter,  83  App.  Div.  254,  82  N.  Y. 
Supp.  37.  Effect  of  requiring  action  to  retain  its  position  on 
the  calendar,  on  allowing  amendment  of  answer  on  motion  to 
compel  plaintiff  to  serve  a  reply,  see  Hollenborg  v.  Greene,  87 
App.  Div.  259,  84  N.  Y.  Supp.  219. 

1047,  n.  237.  But  see  Poerschke  v.  Horowitz,  84  App.  Div. 
443,  82  N.  Y.  Supp.  742. 

1047,  n.  238.  Lewis  v.  Pollack,  85  App.  Div.  577,  580,  83  N. 
Y.  Supp.  287. 

1048,  n.  242.  Serrell  v.  Forbes,  106  App.  Div.  482,  94  N.  Y. 
Supp.  805. 

1051,  n.  7.  Le  Boeuf  v.  Gray,  42  Misc.  632,  ,87  N.  Y.  Supp. 
597.  Facts  occurring  after  the  commencement  of  the  action 
but  before  the  expiration  of  the  time  to  answer  need  not  be  set 
up  by  supplemental  answer  but  may  be  alleged  in  the  original 
answer.  Burke  v.  Rhoads,  82  App.  Div.  325,  81  N.  Y.  Supp. 
1045. 


APPENDIX.  4123 

1051,  n.  10.  Industrial  &  General  Trust  v.  Tod,  93  App.  Div. 
263,  273,  87  N.  Y.  Supp.  687. 

1052,  n.  13.  Admission  of  "due  and  timely"  service  of  the 
pleading  waives  the  failure  to  obtain  leave  of  court.  Greenblatt 
v.  Mendelsohn,  92  N.  Y.  Supp.  963. 

1053,  n.  24.  See,  also,  Hunt  v.  Provident  Sav.  Life  Assur. 
Soc,  77  App.  Div.  338,  79  N.  Y.  Supp.  74. 

1053,  n.  26.  But  in  an  action  for  separation  on  the  ground 
of  cruel  and  inhuman  treatment,  specific  acts  of  cruelty  occur- 
ring since  the  commencement  of  the  action  may  be  set  up  by 
supplemental  answer.  Smith  v.  Smith,  99  App.  Div.  283,  90  N. 
Y.  Supp.  927. 

1053,  n.  28.  Smith  v.  Bach,  82  App.  Div.  608,  81  X.  Y.  Supp. 
1057. 

1054,  §  914.  Leave  to  file  a  supplemental  answer,  setting  up 
the  exchange  of  consents  to  discontinue  the  action  and  the  ex- 
change of  general  releases  by  plaintiff  to  defendant,  should  be 
granted,  to  enable  defendant  to  obtain  an  adjudication  on  a  de- 
fense which  he  claims  constitutes  a  bar  to  the  action.  Tucker  v. 
Dudley,  93  N.  Y.  Supp.  355. 

1056  n.  48.  But  leave  should  not  be  refused  because  the 
judgment  "may"  not  constitute  a  bar.  Rio  Tinto  Copper  Min- 
ing Co.  v.  Black,  85  N.  Y.  Supp.  1116. 

1056,  n.  51.  May  be  refused  because  of  laches.  Jones  v. 
Jones,  99  App.  Div.  267,  90  N.  Y.  Supp.  1002. 

1057,  n.  54.  Delay  of  few  months  in  interposing  judgment  of 
South  Dakota  was  held  not  fatal  in  Rio  Tinto  Copper  Mining 
Co.  v.  Black,  85  N.  Y.  Supp.  1116. 

1058,  n.  69.     Requiring  payment  of  fifteen  dollars  costs  is. 
inadequate.     Pickrell  v.  Mendel,  87  App.  Div.  163,  84  N.  Y. 
Supp.  70. 

1059,  §  918.  On  bringing  in  the  trustee  in  bankruptcy  of  the 
defendants  as  an  additional  defendant,  it  was  held  that  the  orig- 
inal and  supplemental  complaints,  taken  together,  need  not 
state  a  cause  of  action  against  the  trustee,  in  Latimer  v.  McKin- 
non,  85  App.  Div.  224,  83  N.  Y.  Supp.  315. 

1059,  n.  75.  Latimer  v.  McKinnon,  85  App.  Div.  224,  228,  83 
N.  Y.  Supp.  315. 

1062.     It  should  be  kept  in  mind  that  the  motions  enumer- 


4124  APPENDIX. 

ated  herein,  in  so  far  as  they  relate  to  the  complaint,  cannot  be 
made  after  defendant  has  obtained  an  extension  of  time  to  an- 
swer unless  such  right  is  reserved  in  the  stipulation  or  order 
(Vol.  I,  p.  040).  The  court  should  not,  on  motion  at  special  term, 
strike  from  a  complaint  all  the  allegations  of  special  damages. 
Orderly  practice  requires,  where  the  question  arises  as  to 
whether  the  pleading  states  a  cause  of  action  or  a  defense,  that 
it  should  be  determined  by  a  demurrer  or  upon  a  trial,  either  at 
the  opening  thereof,  or  when  evidence  is  offered,  or  at  the  close 
of  the  case,  by  motion  to  the  court;  especially  Pavenstedt  v. 
New  York  Life  Ins.  Co.,  103  App.  Div.  36,  02  N.  Y.  Supp.  853. 

1063.  The  motion  should  not  be  granted  where  the  meaning 
and  application  of  the  allegations  are  clear,  the  theory  upon 
which  plaintiffs  rely  is  not  obscure,  and  further  particulars  of 
time  and  place  are  not  essential  to  a  comprehensive  statement 
of  the  cause  of  action.  Smith  v.  Irvin,  45  Misc.  262,  02  N.  Y. 
Supp.  170. 

1063,  n.  5.     Day  v.  Day,  08  App.  Div.  314,  00  N.  Y.  Supp.  680. 

1064,  n.  18.  An  answer  may  be  required  to  be  made  more 
definite  as  to  what  is  denied  and  what  is  admitted.  Borsuk  v. 
Blauner,  03  App.  Div.  306,  87  N.  Y.  Supp.  851. 

1064,  n.  22.  See,  also,  Viner  v.  James,  02  App.  Div.  542,  87 
N.  Y.  Supp.  257.  "It  is  only  where  the  'precise  meaning  or  ap- 
plication' of  an  allegation  of  a  pleading  is  indefinite  and  uncer- 
tain that  the  court  can  require  the  pleading  to  be  amended.  If 
the  meaning  and  application  of  the  allegation  can  be  seen  with 
reasonable  certainty,  an  amendment  should  not  be  directed." 
Dumar  v.  Witherbee,  Sherman  &  Co.,  8S  App.  Div.  181,  84  N. 
Y.  Supp.  660 ;  Kavanaugh  v.  Commonwealth  Trust  Co.,  45  Misc. 
201,  01  N.  Y.  Supp.  067.  Matters  of  time,  place,  and  circum- 
stance, unless  they  constitute  material  parts  of  the  cause  of 
action  or  defense,  are  strictly  within  the  province  of  a  bill  of 
particulars  and  must  be  obtained  by  that  method  rather  than 
by  a  motion  to  make  more  definite  and  certain.  Dumar  v. 
Witherbee,  Sherman  &  Co.,  88  App.  Div.  181,  84  N.  Y.  Supp. 
660;  Kavanaugh  v.  Commonwealth  Trust  Co.,  45  Misc.  201,  01 
N.  Y.  Supp.  067.  When  all  that  a  party  to  an  action  really 
wants  is  a  more  particular  statement  of  his  opponent's  claim 
for  the  purpose  of  narrowing  the  issues  at  the  trial,  or  to  pre- 


APPENDIX.  4125 

vent  surprise,  he  should  apply  for  a  bill  of  particulars  instead 
of  moving  to  make  more  definite  and  certain.  Dumar  v.  Wither- 
bee,  Sherman  &  Co.,  88  App.  Div.  181,  84  N.  Y.  Supp.  669. 

1064,  n.  23.  In  Kavanaugh  v.  Commonwealth  Trust  Co.,  45 
Misc.  201,  91  N.  Y.  Supp.  967,  Justice  Spencer  refers  to  the 
statement  in  the  text,  and  states  that  the  practice  should  be 
discouraged,  if  not  condemned. 

1065,  n.  25.  Where  pleading  is  served  by  mail,  forty  days  is 
allowed  to  make  the  motion.  Borsuk  v.  Blauner,  93  App.  Div. 
306,  87  N.  Y.  Supp.  851. 

1066,  n.  37.  The  motion  is  not  favored  by  the  courts.  Dinkel- 
spiel  v.  New  York  Evening  Journal  Pub.  Co.,  91  App.  Div.  96, 
98,  86  N.  Y.  Supp.  375. 

1066,  n.  38.  Dinkelspiel  v.  New  York  Evening  Journal  Pub. 
Co.,  91  App.  Div.  96,  98,  86  N.  Y.  Supp.  375 ;  Westervelt  v.  New 
York  Times  Co.,  91  App.  Div.  72,  86  N.  Y.  Supp.  454;  John 
Church  Co.  v.  Parkinson,  86  App.  Div.  163,  83  N.  Y.  Supp.  175 ; 
American  Farm  Co.  v.  Rural  Pub.  Co.,  78  App.  Div.  268,  79  N. 
Y.  Supp.  911. 

1066,  nn.  41,  42.  In  opposition  to  the  rule  laid  down  in  the 
text  is  Uggla  v.  Brokaw,  77  App.  Div.  310,  79  N.  Y.  Supp.  244, 
which  holds  that  where  an  entire  count  in  an  answer  is  re- 
dundant, as  where  it  sets  up  a  defense  provable  under  the  gen- 
eral issue  which  has  been  pleaded,  it  may  be  stricken  out. 

1066,  n.  43.  Facts  which  constitute  a  defense  may  not  be 
stricken  out  as  scandalous;  but,  on  the  other  hand,  facts 
pleaded  as  a  complete  defense,  which  would  be  demurrable  as 
constituting  only  a  partial  defense,  or  as  being  at  most  in  miti- 
gation of  damages,  may  be  stricken  out  as  scandalous  upon  the 
theory  that  the  party  aggrieved  thereby  should  not  be  required 
to  admit  the  truth  of  the  allegations  by  demurring  thereto. 
Persch  v.  Weideman,  106  App.  Div.  553,  94  N.  Y.  Supp.  800. 

1067.  Repetitions  of  denials,  contained  in  a  defense,  will  be 
stricken  out  as  redundant.  Burnham  v.  Franklin,  44  Misc.  299, 
89  N.  Y.  Supp.  917;  Dinkelspiel  v.  New  York  Evening  Journal 
Pub.  Co.,  91  App.  Div.  96,  100,  86  N.  Y.  Supp.  375.  A  reitera- 
tion, in  a  "defense,"  of  "all  the  admissions  and  denials"  in 
preceding  paragraphs,  will  be  stricken  out  as  irrelevant  and 
redundant.    Blaut  v.  Blaut,  41  Misc.  572,  85  N.  Y.  Supp.  146. 


4120  APPENDIX. 

An  answer  is  evasive  where  it  shifts  the  time  to  which  its  alle- 
gations relate  to  a  date  much  later  than  the  date  of  the  verifica- 
tion of  the  complaint  to  which  time  the  allegations  of  the  com- 
plaint relate.  Straus  v.  American  Publishers'  Ass'n,  96  App. 
Div.  315,  316,  89  N.  Y.  Supp.  172.  Matters  irrelevant  as  to  the 
moving  defendant  should  not  be  stricken  out  where  it  is  ma- 
terial to  the  cause  of  action  alleged  against  the  other  defend- 
ants. Brown  v.  Fish,  76  App.  Div.  329,  78  N.  Y.  Supp.  414.  If 
relevant,  matter  cannot  be  stricken  out  because  scandalous,  on 
motion  to  strike  out  as  redundant,  irrelevant,  and  scandalous. 
Bell  v.  Clarke,  45  Misc.  275,  92  N.  Y.  Supp.  411.  Allegations 
in  a  complaint  in  an  action  on  a  contract,  setting  out  the  vari- 
ous steps,  including  the  legal  instruments,  by  which  plaintiff 
became  vested  with  the  rights  of  one  of  the  parties  to  the  con- 
tract, will  not  be  stricken  out  as  redundant  though  a  general 
allegation  might  have  sufficed.  Pope  Mfg.  Co.  v.  Rubber  Goods 
Mfg.  Co.,  100  App.  Div.  353,  91  N.  Y.  Supp.  826. 

1067,  n.  45.  McGarahan  v.  Sheridan,  106  App.  Div.  532,  94 
N.  Y.  Supp.  708 ;  Pope  Mfg.  Co.  v.  Rubber  Goods  Mfg.  Co.,  100 
App.  Div.  349,  91  N.  Y.  Supp.  828 ;  Ring  v.  Mitchell,  45  Misc. 
493,  92  N.  Y.  Supp.  749 ;  Palmer  v.  Day,  44  Misc.  579,  90  N.  Y. 
Supp.  133 ;  Dinkelspiel  v.  New  York  Evening  Journal  Pub.  Co., 
91  App.  Div.  96,  98,  86  N.  Y.  Supp.  375. 

1067,  n.  52.  Parsons  v.  McDonald,  88  App.  Div.  552,  85  N.  Y. 
Supp.  190 ;  Ring  v.  Mitchell,  45  Misc.  493,  92  N.  Y.  Supp.  749. 
However,  in  Vogt  v.  Vogt,  86  App.  Div.  437,  83  N.  Y.  Supp. 
677;  Tradesmen's  Nat.  Bank  v.  United  States  Trust  Co.,  49 
App.  Div.  362,  63  N.  Y.  Supp.  526;  and  Rockwell  v.  Day,  84 
App.  Div.  437,  82  N.  Y.  Supp.  993 ;  the  striking  out  of  allega- 
tions of  evidence  was  refused  on  the  ground  that  the  moving 
party  was  not  prejudiced  thereby.  It  seems  that  all  statements 
of  evidence  need  not  be  stricken  out  as  redundant,  especially 
in  equitable  actions.  Bell  v.  Clarke,  45  Misc.  275,  92  N.  Y.  Supp. 
411. 

1068,  n.  62.  Day  v.  Day,  95  App.  Div.  122,  88  N.  Y.  Supp. 
504. 

1069,  "Where  a  part,  but  not  all,  of  an  answer  was  scandal- 
ous, irrelevant,  etc.,  it  cannot  be  stricken  from  the  files,  nor 
can  defendant  be  required  to  surrender  the  original  answer  td 


APPENDIX.  4127 

plaintiff  for  cancellation,  or  to  serve  an  amended  pleading,  but 
the  scandalous,  etc.,  matter  should  be  stricken  out.  Persch  v. 
Weideman,  106  App.  Div.  553,  94  N.  Y.  Supp.  800. 

1070,  n.  82.  Zimmerman  v.  Meyrowitz,  77  App.  Div.  329,  79 
N.  Y.  Supp.  159. 

1071.  An  answer  is  frivolous  where  it  denies  knowledge  or 
information  sufficient  to  form  a  belief  as  to  the  truth  of  alle- 
gations which  relate  to  matters  of  public  record,  open  by  law 
to  public  inspection  and  with  knowledge  of  which  the  defendant 
is  chargeable  by  law.  City  of  N.  Y.  v.  Matthews,  180  N.  Y. 
41,  47. 

1071,  n.  84.  Soper  v.  St.  Regis  Paper  Co.,  76  App.  Div.  409, 
78  N.  Y.  Supp.  782. 

1071,  n.  92.  Maccarone  v.  Hayes,  85  App.  Div.  41,  82  N.  Y. 
Supp.  1005. 

1073,  n.  106.  Shaw  v.  Feltman,  99  App.  Div.  514,  91  N.  Y. 
Supp.  114;  Rankin  v.  Bush,  93  App.  Div.  181,  184,  87  N.  Y. 
Supp.  539. 

1073,  n.  113.  Soper  v.  St.  Regis  Paper  Co.,  76  App.  Div.  409, 
412,  78  N.  Y.  Supp.  782 ;  Place  v.  Bleyl,  45  App.  Div.  17,  60  N. 
Y.  Supp.  800. 

1076,  n.  141.  Schlesinger  v.  Wise,  106  App.  Div.  587,  94  N. 
Y.  Supp.  718. 

1077,  n.  146.  A  specific  denial  cannot  be  stricken  out  as 
sham  even  where  inconsistent  with  a  separate  defense  set  up  in 
the  answer.  Schlesinger  v.  Wise,  106  App.  Div.  587,  94  N.  Y. 
Supp.  718 ;  Schlesinger  v.  McDonald,  106  App.  Div.  570,  94  N. 
Y.  Supp.  721. 

1077,  n.  147.  Hopkins  v.  Meyer,  76  App.  Div.  365,  78  N.  Y. 
Supp.  459. 

1077,  nn.  147,  148.  Schlesinger  v.  McDonald,  106  App.  Div. 
570,  94  N.  Y.  Supp.  721. 

1077,  n.  151.  The  falsity  must  appear  beyond  a  reasonable 
doubt.  Zimmerman  v.  Meyrowitz,  77  App.  Div.  329,  79  N.  Y. 
Supp.  159.  It  is  not  enough  that  a  material  fact  contained  in 
the  original  answer  which  was  held  bad  on  demurrer  was  omit- 
ted from  the  amended  answer.    Id. 

1084,  n.  206.     A  motion  for  judgment  on  the  pleadings  should 


.11 28  APPENDIX 

not  be  made  before  the  opening  of  the  trial.    Durham  v.  Dur- 
ham, 99  App.  Div.  450,  91  N.  Y.  Supp.  295. 

1085,  n.  212.  Causes  of  action  for  an  accounting  under  a 
contract  and  for  its  cancellation  are  not  inconsistent.  Gowans 
v.  Jobbins,  90  App.  Div.  429,  86  N.  Y.  Supp.  312. 

1085,  n.  216.  In  the  absence  of  injury  to  the  defendant, 
whore  the  proof  will  be  practically  the  same  in  support  of  both 
t-.nises  of  action,  the  special  term  will  deny  a  motion  before 
trial  to  compel  an  election,  without  prejudice,  it  seems,  to  a 
motion  at  the  trial.  Monigan  v.  Erie  R.  Co.,  99  App.  Div.  603, 
91  N.  Y.  Supp.  657. 

1086,  n.  226.  The  motion  may  be  granted  at  the  close  of  the 
testimony  though  properly  denied  before.  Rosenberg  v.  Heidel- 
berg, 98  App.  Div.  17,  90  N.  Y.  Supp.  684. 

1088.  Where  the  complaint  discloses  the  theory  of  the  ac- 
tion, and  plaintiff  concedes  that  he  relies  upon  but  one  cause 
of  action,  the  motion  to  separately  state  and  number  will  be 
denied.    Ring  v.  Mitchell,  45  Misc.  493,  92  N.  Y.  Supp.  749. 

1088,  n.  238.  Ring  v.  Mitchell,  45  Misc.  493,  92  N.  Y.  Supp. 
749. 

1088,  n.  240.  "Weed  v.  First  Nat.  Bank,  106  App.  Div.  285, 
94  N.  Y.  Supp.  681 ;  Smith  v.  Irvin,  45  Misc.  262,  92  N.  Y.  Supp. 
170;  Woods  v.  McClure,  42  Misc.  8,  85  N.  Y.  Supp.  549.  If 
elaborate  argument  is  necessary  to  show  that  more  than  one 
cause  of  action  is  stated,  the  motion  will  not  be  granted.  Peo- 
ple v.  Buell,  85  App.  Div.  141,  83  N.  Y.  Supp.  143. 

1089,  n.  244.  But  it  seems  that  inasmuch  as  inconsistent 
averments  in  the  reply  cannot  be  used  to  help  out  the  plaint- 
iff's cause  of  action,  no  prejudice  can  result  from  a  refusal  to 
strike  out  such  averments.  Pope  Mfg.  Co.  v.  Rubber  Goods 
Mfg.  Co.,  100  App.  Div.  349,  91  N.  Y.  Supp.  828. 

1090,  n.  2.  Failure  to  state  cause  of  action  is  not  waived  by 
failure  to  demur.  Thrall  v.  Cuba  Village,  88  App.  Div.  410,  84 
N.  Y.  Supp.  661.  The  fact  that  the  complaint  shows  on  its  face 
that  the  oral  contract  relied  on  is  invalid  within  the  statute  of 
frauds  does  not  prevent  the  objection  being  taken  by  answer 
instead  of  by  demurrer  since  the  objection  really  is  that  no 
cause  of  action  is  stated  and  that  objection  is  not  waived  by  a 


APPENDIX.  4129 

failure  to  demur.  Seamans  v.  Barentsen,  180  N.  Y.  333,  revers- 
ing 78  App.  Div.  36,  79  N.  Y.  Supp.  212.  Failure  to  state  a 
cause  of  action  is  waived,  however,  so  far  as  to  permit  an  appel- 
late court  to  amend  the  complaint  to  conform  to  the  evidence 
so  as  to  sustain  the  judgment,  where  a  motion  to  dismiss  the 
complaint  because  thereof  is  denied  at  the  opening  of  the  case, 
with  leave  to  renew,  and  the  motion  to  dismiss  made  at  the 
close  of  plaintiff's  case  and  of  all  the  evidence  did  not  refer 
to  the  insufficiency  of  the  complaint  nor  was  any  of  the  evi- 
dence objected  to  as  inadmissible  under  the  complaint.  John- 
son v.  City  of  Albany,  86  App.  Div.  567,  571,  83  N.  Y.  Supp. 
1002.  The  withdrawal  of  a  demurrer  does  not  estop  the  de- 
fendant from  objecting  on  the  trial  that  the  complaint  does  not 
state  a  cause  of  action.  Seydel  v.  Corporation  Liquidating  Co., 
92  N.  Y.  Supp.  225.  Objection  to  jurisdiction  of  court  is  not 
waived.  Le  Brantz  v.  Campbell,  89  App.  Div.  583,  85  N.  Y. 
Supp.  654. 

1090,  n.  4.  Waters  v.  Spencer,  44  Misc.  15,  89  N.  Y.  Supp. 
693.  The  existence  of  a  cause  of  action  should  be  distinguished 
from  the  capacity  to  sue.  Town  of  Ulysses  v.  Ingersoll,  81  App. 
Div.  304,  80  N.  Y.  Supp.  924. 

1091,  n.  6.  Ward  v.  Smith,  95  App.  Div.  432,  434,  88  N.  Y. 
Supp.  700.  Exception  to  rule,  as  laid  down  in  note,  followed  in 
Jewett  v.  Schmidt,  45  Misc.  34,  90  N.  Y.  Supp.  848;  Kent  v. 
^.etna  Ins.  Co.,  84  App.  Div.  428,  82  N.  Y.  Supp.  817.  If  the 
objection,  apparent  on  the  face  of  the  complaint,  is  not  taken 
by  demurrer,  it  is  improper  for  the  court,  on  the  hearing  of  a 
demurrer  to  the  answer,  to  grant  the  defendant  leave  to  demur 
to  the  complaint  because  of  a  defect  of  parties.  Ward  v.  Smith, 
95  App.  Div.  432,  88  N.  Y.  Supp.  700. 

1091,  n.  7.  Jacobs  v.  New  York  Cent.  &  H.  R.  R.  Co.,  107 
App.  Div.  134,  94  N.  Y.  Supp.  954. 

1091,  n.  8.  Ward  v.  Smith,  95  App.  Div.  432,  88  N.  Y.  Supp. 
700;  Shaw  v.  City  of  N.  Y.,  83  App.  Div.  212,  216,  82  N.  Y. 
Supp.  44. 

1093,  §  938.     Where  a  pleading  is  returned  on  one  ground, 

other  grounds  are  waived.    Tolhurst  v.  Howard,  .94  App.  Div. 

439,  88  N.  Y.  Supp.  235.    Retention  of  an  answer  precludes  the 

plaintiff  from  treating  it  as  a  nullity  because  of  the  failure  to 

N.  Y.  Prac—  259. 


4130  APPENDIX. 

serve  with  an  order  for  the  trial  of  the  issues,  in  an  action 
againsl  a  corporation.  Tautphoeus  v.  Harbor  &  S.  Bldg.  &  Sav. 
Assn,  96  App.  Div.  23,  26,  88  N.  Y.  Supp.  709. 

1093,  n.  22.  Story  v.  Richardson,  91  App.  Div.  381,  86  N.  Y. 
Supp.  813. 

1289,  n.  139.  A  mere  constructive  fraud,  such  as  a  sale  by 
a  debtor  of  his  entire  stock  of  merchandise  in  bulk  without  the 
notice  to  his  creditors  required  by  Laws  1902,  c.  528,  does  not 
warrant  an  arrest.  Mann  v.  Chrestopulos,  87  App.  Div.  222,  84 
N.  Y.  Supp.  372. 

1315,  n.  313.  See,  as  contra,  Lewis  v.  Pollack,  85  App.  Div. 
577,  83  N.  Y.  Supp.  287. 

1318,  n.  332.  Followed  in  Barnes  v.  Goss,  98  App.  Div.  1,  90 
N.  Y.  Supp.  140. 

1320,  n.  344.  Moving  papers  purporting  to  be  based  on  per- 
sonal knowledge,  and  which  fail  to  show  personal  knowledge, 
and  which  state  no  circumstances  from  which  the  inference 
can  fairly  be  drawn  that  an  affiant  has  personal  knowledge  of 
the  facts  which  he  alleges,  are  insufficient.  Price  v.  Levy,  93 
App.  Div.  274,  87  N.  Y.  Supp.  740. 

1321,  n.  356.  Barnes  v.  Goss,  98  App.  Div.  1,  90  N.  Y.  Supp. 
140. 

1324,  n.  368.  Where  the  arrest  is  sought  under  subdivision  4, 
i.  e.,  where  the  action  is  based  on  contract  with  allegations  of 
fraud,  it  is  submitted  that  the  complaint  must  be  one  of  the 
moving  papers,  though  the  contrary  is  held  in  Lewis  v.  Pol- 
lack, 85  App.  Div.  577,  83  N.  Y.  Supp.  287. 

1351,  n.  561.  The  delay  referred  to  herein  means  more  than 
a  mere  neglect  to  proceed.  It  means  a  positive  act  in  the  way 
of  obstruction.  The  failure  to  serve  a  notice  of  trial  or  file  a 
note  of  issue  is  not  such  delay  since  defendant's  attorney  could 
do  such  acts  and  bring  the  case  to  trial  as  well  as  plaintiff's  at- 
torney.   Goff  v.  Charlier,  44  Misc.  28,  89  N.  Y.  Supp.  722. 

1365,  n.  664.  A  mere  offer  "to  give  him  up"  is  insufficient. 
Garofalo  v.  Prividi,  43  Misc.  359,  87  N.  Y.  Supp.  467.  In  an  ac- 
tion against  a  sheriff  for  a  false  return  to  a  body  execution,  he 
may  plead  as  a  partial  defense  in  mitigation  of  damages  that 
the  plaintiff  and  a  surety  were  in  the  sheriff's  office  after  the 
commencement  of  the  action  aerainst  the  sureties  and  before  the 


APPENDIX.  4131 

time  to  answer  in  said  action  had  expired ;  that  the  said  sureties 
were  then  and  there  advised  of  the  manner  in  which  they  could 
relieve  themselves  from  further  liability;  and  that,  notwith- 
standing such  information  and  advice,  they  wholly  neglected 
to  surrender  their  principal  to  the  defendant  as  required  by 
law.    Prividi  v.  O'Brien,  46  Misc.  56,  91  N.  Y.  Supp.  324. 

1372,  n.  714.  Garofalo  v.  Prividi,  43  Misc.  359,  87  N.  Y.  Supp. 
467. 

1373,  n.  730.  A  recovery  in  excess  of  the  amount  of  the  un- 
dertaking may  be  modified  on  appeal.  Garofalo  v.  Prividi,  43 
Misc.  359,  87  N.  Y.  Supp.  467. 

1386,  n.  29.  Time  to  serve  summons  cannot  be  extended  so 
as  to  give  jurisdiction.  Jones  v.  Fuchs,  106  App.  Div.  260,  94 
N.  Y.  Supp.  57. 

1394,  n.  94.     This  case  is  affirmed  in  173  N.  Y.  314. 

1399.  The  mere  fact  that  a  solvent  domestic  corporation  is 
about  to  remove  its  manufacturing  plant  to  New  Jersey  is  not, 
of  itself,  ground.  Davis  v.  Reflex  Camera  Co.,  97  App.  Div.  73, 
89  N.  Y.  Supp.  587. 

1407,  n.  185.  In  an  action  against  a  firm,  the  fact  that  a 
warrant  of  attachment  was  obtained  against  two  of  the  three 
defendants  sued  was  no  objection  to  a  levy  on  the  property 
of  the  firm,  where  the  two  defendants  against  whom  the  war- 
rant was  obtained  had  been  served  and  appeared.  Rogers  v. 
Ingersoll,  103  App.  Div.  490,  93  N.  Y.  Supp.  140. 

1410,  n.  204.  Furthermore  a  firm  debt  to  a  foreign  corpora- 
tion cannot  be  attached  by  service  of  copies  of  the  attachment 
on  a  partner  residing  in  this  state,  in  so  far  as  the  liability  of 
nonresident  partners  is  concerned.  National  Broadway  Bank 
v.  Sampson,  179  N.  Y.  213. 

1423,  n.  308.  Matter  of  Stafford,  105  App.  Div.  46,  94  N.  Y. 
Supp.  194. 

1424,  n.  314.  Smith  v.  Blood,  106  App.  Div.  317,  94  N.  Y. 
Supp.  667. 

1430,  n.  347.  This  Code  provision  does  not  prevent  one  from 
estopping  himself  to  claim  property  as  exempt,  as  by  becoming 
a  surety  on  a  bond  and  enumerating  in  the  affidavit  of  justifica- 
tion the  exempt  property  as  property  not  exempt,  he  having 
knowledge  of  the  exemption  which  was  not  known  to  those 


I  !:',•_>  APPENDIX. 

with  whom  he  was  dealing.     McMahon  v.  Cook,  107  App.  Div. 
150,  04  N.  Y.  Supp.  1019. 

1440,  n.  411.  Outerbridge  v.  Campbell,  87  App.  Div.  597,  84 
X.  Y.  Supp.  537. 

1441,  n.  416.  Mexico  City  Banking  Co.  v.  Melntyre,  105  App. 
Div.  492,  94  N.  Y.  Supp.  157. 

1442,  n.  433.  See,  also,  Box  Board  &  Lining  Co.  v.  Vincennes 
Paper  Co.,  45  Misc.  1,  90  N.  Y.  Supp.  836. 

1442,  n.  434.  Rule  applied  in  Austrian  Bentwood  Furniture 
Co.  v.  Wright,  43  Misc.  616,  88  N.  Y.  Supp.  142. 

1446.  An  affidavit  on  information  and  belief  that  defendant 
has  made  no  designation  of  a  person  on  whom  service  of  process 
can  be  made  is  sustained  by  an  informal  county  clerk's  certifi- 
cate as  follows:  "Nothing  found  to  December  10th,  1903,  at 
9  a.  m."  Ennis  v.  Untermyer,  93  App.  Div.  375,  87  N.  Y.  Supp. 
695. 

1448.  Where  the  papers  do  not  disclose  that  the  contract 
was  made  within  the  state,  it  is  not  necessary  to  aver  compli- 
ance with  the  statutory  condition  as  to  a  certificate  procured 
from  the  secretary  of  state  to  enable  a  foreign  corporation  to 
sue.  Box  Board  &  Lining  Co.  v.  Vincennes  Paper  Co.,  45  Misc. 
1,  90  N.  Y.  Supp.  836. 

1448,  n.  470.  Personal  knowledge  of  affiant  was  presumed 
in  Box  Board  &  Lining  Co.  v.  Vincennes  Paper  Co.,  45  Misc.  1, 
90  N.  Y.  Supp.  836. 

1449,  n.  478.     Lassen  v.  Burt,  92  N.  Y.  Supp.  796. 

1453,  n.  512.  On  a  motion  to  vacate,  the  court  has  no  power 
to  amend  the  affidavits  on  which  the  warrant  of  attachment 
was  based,  to  meet  the  objection  that  the  warrant  stated  only 
conclusions  and  that  these  were  in  the  alternative.  Davis  v. 
Reflex  Camera  Co.,  97  App.  Div.  73,  89  N.  Y.  Supp.  587. 

1454,  n.  516.  Where  the  court  issuing  a  warrant  of  attach- 
ment has  jurisdiction,  the  sufficiency  of  the  affidavit  for  the  at- 
tachment is  not  questionable  on  collateral  attack.  Rogers  v. 
Ingersoll,  103  App.  Div.  490,  93  N.  Y.  Supp.  140. 

1460,  n.  560.  The  attachment  must  be  signed  by  the  plaint- 
iff's attorney.    Lassen  v.  Burt,  92  N.  Y.  Supp.  796. 

1464,  n.  586.     A  defect  of  this  character  is  not  jurisdictional 


APPENDIX.  4133 

and  does  not  render  the  attachment  void.  Rogers  v.  Ingersoll, 
103  App.  Div.  490,  93  N.  Y.  Supp.  140. 

1465,  n.  589.  The  effect  of  the  attachment  is  merely  to  create 
a  lien.  Beardslee  v.  Ingraham,  106  App.  Div.  506,  94  N.  Y. 
Supp.  937. 

1481,  n.  697,  Rule  applied  to  levy  on  real  property.  Beards- 
lee v.  Ingraham,  106  App.  Div.  506,  94  N.  Y.  Supp.  937. 

1483,  n.  708.  An  attachment  regularly  issued  against  a  "for- 
eign corporation"  creates  a  right  superior  to  the  claim  of  a  re- 
ceiver appointed  in  the  home  jurisdiction,  even  though  such 
receivership  is  prior  in  point  of  time  to  the  levy  of  the  attach- 
ment, if  it  be  levied  prior  to  the  appointment  of  a  receiver  in 
this  state.  National  Park  Bank  v.  Clark,  92  App.  Div.  262,  87 
X.  Y.  Supp.  185.  But  where  property  of  a  corporation  is  placed 
in  the  hands  of  a  receiver  appointed  by  a  court  of  this  state, 
and  the  receiver  is  ordered  to  sell  and  hold  the  proceeds  of  the 
sale  subject  to  incumbrances,  it  is  proper  to  enjoin  a  sale  under 
an  attachment  issued  by  a  federal  court  though  levied  before 
the  receivership  proceedings.  Beardslee  v.  Ingraham,  106  App. 
Div.  506,  94  N.  Y.  Supp.  937. 

1492,  n.  748.  The  sheriff's  rights,  under  this  Code  section, 
cannot  survive  the  attachment  itself  and  is  dependent  thereon, 
and  after  such  attachment  has  been  discharged  by  order  of  the 
court  it  no  longer  exists,  and  the  Code  provision  can  no  longer 
be  invoked  by  the  sheriff.  O'Brien  v.  Manhattan  R.  Co.,  45 
Misc.  643,  91  X.  Y.  Supp.  69. 

1497.  In  such  an  action,  it  is  no  defense  that  the  warrant  of 
attachment  is  voidable,  where  it  is  not  void.  Rogers  v.  Inger- 
soll, 103  App.  Div.  490,  93  N.  Y.  Supp.  140. 

1497,  n.  780.  The  leave  of  the  court  to  bring  the  action  re- 
fers to  the  court  in  which  the  action  is  brought,  and  not  to  the 
court  of  which  the  officer  who  issued  the  warrant  of  attachment 
is  a  member.  Rogers  v.  Ingersoll,  103  App.  Div.  490,  93  X.  Y. 
Supp.  140. 

1507.  Upon  the  discharge  of  the  attachment,  the  sheriff  has 
the  right  remaining  in  him  to  retain  the  property  levied  upon 
until  his  fees  and  poundage  are  paid  (subdivision  2,  §  17,  c.  523, 
p.  940,  Laws  1890,  as  amended  by  Laws  1892,  p.  868,  c.  418), 
but  such  right  gives  him  no  cause  of  action  against  a  person  in- 


-J.134  APPENDIX. 

debted  to  the  attachment  debtor,  for  poundage,  in  the  absence 
of  special  circumstances.  O'Brien  v.  Manhattan  R.  Co.,  45 
Misc.  643,  91  N.  Y.  Supp.  69. 

1518,  n.  922.  Norden  v.  Duke,  106  App.  Div.  514,  94  N.  Y. 
Supp.  878. 

1520,  n.  939.  Ennis  v.  Untermyer,  93  App.  Div.  375,  87  N.  Y. 
Supp.  695;  Van  Wickle  v.  Weaver  Coal  &  Coke  Co.,  88  App. 
Div.  603,  85  N.  Y.  Supp.  82. 

1534,  n.  1025.  This  Code  provision  refers  only  to  property 
actually  in  possession  of  the  sheriff.  Where  notice  is  served  on 
a  person  indebted  to  the  attachment  debtor,  but  no  money  is 
paid  over,  and  thereafter  the  attachment  is  vacated  by  the  giv- 
ing of  an  undertaking,  the  sheriff  cannot  sue  the  person  in- 
debted to  the  attachment  debtor,  to  recover  his  fees.  O'Brien 
v.  Manhattan  R.  Co.,  45  Misc.  643,  91  N.  Y.  Supp.  69. 

1558,  n.  11.  The  court  will  seldom  grant  a  mandatory  in- 
junction pendente  lite  unless  the  plaintiff's  right  is  so  clear  that 
the  denial  would  be  either  captious  or  unconscionable.  West 
Side  Elec.  Co.  v.  Consolidated  T.  &  E.  S.  Co.,  87  App.  Div.  550, 
84  X.  Y.  Supp.  1052. 

1560,  n.  29.  See  Strickland  v.  National  Salt  Co.,  94  N.  Y. 
Supp.  936. 

1562,  n.  40.  Glascoe  v.  Willard,  44  Misc.  166,  89  N.  Y.  Supp. 
791. 

1562,  n.  41.  See  Butler  v.  Butler,  91  App.  Div.  327,  86  N.  Y. 
Supp.  586. 

1562,  n.  42.  Injunction  against  police  officers  to  restrain 
picketing  in  front  of  and  about  plaintiff's  premises  refused 
where  plaintiff's  good  faith  and  the  nature  of  his  business  was 
not  clearly  shown.  Craushaw  v.  McAdoo,  47  Misc.  420,  94  N. 
Y.  Supp.  386. 

1562,  n.  48.  Rule  applied  in  refusing  a  temporary  injunc- 
tion to  restrain  police  authorities  from  interfering  with  base- 
ball games  on  Sunday.  Brighton  Athletic  Club  v.  McAdoo,  47 
Misc.  432,  94  N.  Y.  Supp.  391. 

1567.  In  an  action  to  restrain  the  sale  of  goods  under  a  cer- 
tain name,  where  the  controversy  grows  out  of  the  dissolution 
of  the  firm,  it  is  proper  to  enjoin  pendente  lite  the  retiring  part- 
ners from  using  such  name  to  obtain  the  trade  of  the  old  firm. 


APPENDIX.  4135 

Steinfeld  v.  National  Shirt  Waist  Co.,  99  App.  Div.  286,  90  X. 
Y.  Supp.  964. 

1567,  n.  93.  Gillette  v.  Xoyes,  92  App.  Div.  313,  86  X.  Y. 
Supp.  1062. 

1568.  See,  also,  Piatt  v.  Elias,  101  App.  Div.  518,  91  X.  Y. 
Supp.  1079. 

1574.  Whether  the  application  is  based  on  section  603  or 
601  of  the  Code,  the  order  should  not  be  granted  except  on 
proof  that  plaintiff  has  a  cause  of  action.  Werbelovsky  v. 
Michael,  106  App.  Div.  138,  91  X.  Y.  Supp.  156. 

1574.  In  determining  whether  the  cause  of  action  against  a 
foreign  corporation  arose  within  the  state,  the  allegations  of 
the  pleadings  alone  may  be  considered.  Rosenblatt  v.  Jersey 
Novelty  Co..  45  Misc.  59,  90  X.  Y.  Supp.  816. 

1574,  n.  145.  Gillette  v.  Xoyes,  92  App.  Div.  313,  86  X.  Y. 
Supp.  1062. 

1575,  n.  149.  Glascoe  v.  Willard,  41  Misc.  166,  89  X.  Y.  Supp. 
791. 

1583,  n.  209.  But  where  the  order  restrains  the  prosecution 
of  an  action  at  law,  it  should  recpiire  the  plaintiff  to  give  the 
security  provided  for  by  section  611  of  the  Code.  Werbelovsky 
v.  Michael,  106  App.  Div.  138,  94  X.  Y.  Supp.  156. 

1584.  The  order  can  have  no  extraterritorial  force.  Rosen- 
blatt v.  Jersey  Novelty  Co,  45  Misc.  59,  90  X.  Y.  Supp.  816. 

1588,  n.  244.  So  held  where  labor  union,  its  agents,  servants, 
etc,  was  enjoined  from  interfering  with  non-union  men.  Peo- 
ple ex  rel.  Stearns  v.  Marr,  181  X.  Y.  463. 

1588,  n.  252.  Strikers  who  are  members  of  a  union  enjoined 
from  doing  certain  acts  may  be  punished  for  disobedience  of  the 
injunction  though  it  was  not  personally  served  on  them.  People 
ex  rel.  Stearns  v.  Marr,  181  X.  Y.  463. 

1604,  n.  384.  Compare  City  of  Xew  York  v.  Brown,  179  X. 
Y.  303. 

1604,  n.  386.  McGown  v.  Barnum,  42  Misc.  585,  87  X.  Y. 
Supp.  605. 

1605,  n.  391.  McGown  v.  Barnum.  42  Misc.  585,  87  X.  Y. 
Supp.  605.  A  discontinuance  on  stipulation,  and  the  vacation 
of  the  injunction  pursuant  to  such  stipulation,  does  not,  how- 
ever, constitute  an  adjudication  that  plaintiff  was  not  entitled 


413(>  APPENDIX. 

to  the  injunction.    Freifeld  v.  Sire,  96  App.  Div.  296,  89  N.  Y. 
Supp.  260. 

1607,  n.  402.  That  order  is  an  order  in  an  action  and  not  in 
a  special  proceeding  was  the  ground  on  which  the  appeal  was 
dismissed  in  Keator  v.  Dalton,  171  N.  Y.  650,  without  opinion. 
The  case  of  Lawton  v.  Green,  64  N.  Y.  326,  is  to  the  contrary. 

1612,  n.  455.  It  is  immaterial  that  the  injunction  was  va- 
cated on  the  return  of  an  order  to  show  cause  why  the  tem- 
porary injunction  granted  by  such  order  should  not  be  con- 
tinued pendente  lite.  Perlman  v.  Bernstein,  93  App.  Div.  335, 
87  N.  Y.  Supp.  862. 

1613,  n.  456.  See,  as  contra,  McGown  v.  Barnum,  42  Misc. 
585,  87  N.  Y.  Supp.  605. 

1614,  n.  468.  Perlman  v.  Bernstein,  93  App.  Div.  335,  87  N. 
Y.  Supp.  862. 

1634,  n.  89.  This  Code  section  also  applies  to  a  receiver  ap- 
pointed in  a  matrimonial  action.  Matter  of  Spies,  92  App.  Div. 
175,  86  N.  Y.  Supp.  1043. 

1635,  n.  95.  But  the  failure  of  the  order  to  require  a  bond 
does  not  excuse  the  refusal  to  deliver  over  property  to  the  re- 
ceiver.   Matter  of  Spies,  92  App.  Div.  175,  86  N.  Y.  Supp.  1043. 

1641,  §  1257.  Compare  Foster  v.  Foster,  98  App.  Div.  24, 
90  N.  Y.  Supp.  451,  as  to  duty  of  receiver  to  surrender  posses- 
sion. 

1641,  n.  132.  The  same  rule  applies  where  an  attachment  is 
issued  out  of  a  federal  court.  Beardslee  v.  Ingraham,  106  App. 
Div.  506,  94  N.  Y.  Supp.  937. 

1647,  n.  182.  Leave  to  sue  may  be  granted  nunc  pro  tunc. 
De  La  Fleur  v.  Barney,  45  Misc.  515,  92  N.  Y.  Supp.  926. 

1654,  n.  238.  Sureties  must  have  had  notice  of  the  account- 
ing. Stratton  v.  City  Trust,  etc.  Co.,  86  App.  Div.  551,  83  N. 
Y.  Supp.  780. 

1655,  n.  244.  The  payment  of  brokerage  for  procuring  a  re- 
ceiver's bond  is  not  a  lawful  charge  as  an  expense  of  the  re- 
ceivership, since  not  a  sum  paid  to  his  surety  under  section 
3320  of  the  Code.  Adams  v.  Elwood,  104  App.  Div.  138,  93  N. 
Y.  Supp.  327.  Where  an  order  appointing  a  receiver  authorized 
him  to  reduce  to  his  possession  sufficient  property  to  pay  plaint- 
iff's claim  as  it  should  eventually  be  established,  the  receiver 


APPENDIX.  4137 

should  be  allowed  the  five  per  cent  commission  computed  on  the 
total  value  of  the  property  acquired  by  him  in  endeavoring  to 
discharge  his  duty  in  good  faith,  although  that  property  proved 
to  be  more  than  was  in  the  end  actually  required  to  satisfy  the 
judgment  recovered.     Id. 

1661.  Section  474  of  the  Code  was  amended  by  Laws  1904, 
c.  747,  by  adding  the  following  clause:  "The  appellate  di- 
vision of  each  department  may  provide  by  rule  for  the  manner 
of  taking  up  calendars  in  each  county  embraced  within  the  de- 
partment; and  for  the  classification  for  the  the  purposes  of 
trial,  of  actions  placed  on  such  calendars;  and  may  also  pro- 
vide for  the  making  up  of  two  or  more  calendars  within  such 
classification." 

1662.  Where  a  case  was  noticed  for  trial  pending  an  appeal 
from  the  overruling  of  a  demurrer  to  the  answer,  and  before 
the  case  was  reached  on  the  day  calendar  the  appellate  court 
modified  the  interlocutory  judgment  and  granted  plaintiff 
leave  to  reply,  and  a  reply  was  thereupon  served,  the  right  of 
defendants  to  retain  the  case  on  the  calendar  or  to  move  for 
trial  pursuant  to  their  original  notice  of  trial  was  terminated, 
and  a  new  notice  of  trial  and  note  of  issue  required.  Ward  v. 
Smith,  103  App.  Div.  375,  92  N.  Y.  Supp.  107,  reversing  45 
Misc.  169,  91  N.  Y.  Supp.  905. 

1663.  n.  8.  To  same  effect,  Muglia  v.  Erie  R.  Co.,  97  App. 
Div.  532,  90  N.  Y.  Supp.  216. 

1665,  n.  20.  Notice  of  trial  cannot  be  served  before  the 
service  of  the  complaint.  Sanders  v.  People's  Co-Op.  Ice  Co., 
44  Misc.  171,  89  N.  Y.  Supp.  785.  That  notice  cannot  be  served, 
before  joinder  of  issue,  though  order  provides  that  date  of  issue 
be  of  a  date  prior  to  the  actual  service  of  the  answer,  see  Mug- 
lia v.  Erie  R.  Co.,  97  App.  Div.  532,  90  N.  Y.  Supp.  216. 

1666,  n.  28.  Followed  in  Ward  v.  Smith,  45  Misc.  169,  91  N. 
Y.  Supp.  905,  which  is  reversed,  on  another  point,  in  103  App. 
Div.  375,  92  N.  Y.  Supp.  1107.  It  seems  that  the  right  to  move 
to  strike  a  case  from  the  calendar  because  notice  of  trial  was 
filed  prior  to  the  joinder  of  issue  is  waived  where  the  objecting 
party  also  noticed  the  case  for  trial  at  the  same  term  of  court 
(Muglia  v.  Erie  R.  Co.,  97  App.  Div.  532,  90  N.  Y.  Supp.  216), 


1-138  APPENDIX. 

though  il  has  also  been  held  that  service  before  joinder  of  issue 
is  a  nullity  and  not  waived  by  the  failure  to  return  the  notice. 
Sanders  v.  People's  Co-Op.  Ice  Co.,  44  Misc.  171,  89  N.  Y.  Supp. 
785. 

1668,  §  1278.  Of  course  the  note  of  issue  cannot  be  filed 
until  after  the  case  is  noticed  for  trial.  McMann  v.  Brown,  92 
A  pp.  Div.  249,  87  N.  Y.  Supp.  38.  But  the  filing  of  a  note  of 
issue  before  service  of  a  notice  of  trial,  where  both  are  done 
on  the  same  day,  is  not  ground  for  striking  the  cause  from  the 
calendar.    Lederer  v.  Adler,  44  Misc.  217,  88  N.  Y.  Supp.  1010. 

1670,  §  1280.  In  the  first  judicial  district  a  case  may  be 
passed  where  counsel  is  engaged  in  the  trial  of  another  case. 
Spero  v.  Supreme  Council,  A.  L.  H.,  95  App.  Div.  499,  88  N.  Y. 
Supp.  989. 

1672,  n.  59.  The  Code  provision  only  applies  where  the  in- 
strument sued  on  shows  on  its  face  that  the  plaintiff  is  entitled 
to  the  amount  sought  to  be  recovered.  Tautphoeus  v.  Harbor 
&  S.  Bldg.  &  Sav.  Ass'n,  96  App.  Div.  23,  88  N.  Y.  Supp.  709. 

1677,  n.  75.  The  pleadings,  however,  where  a  part  of  the 
motion  papers,  are  sufficient  to  show  that  the  action  is  against 
an  administratrix  in  her  official  capacity.  Jackson  v.  Jackson, 
44  Misc.  44,  89  N.  Y.  Supp.  715. 

1678,  subcl.  8.  Rule  applies  to  action  against  foreign  corpor- 
ations as  well  as  to  actions  against  domestic  corporations. 
Martin's  Bank  v.  Amazonas  Co.,  98  App.  Div.  146,  90  N.  Y. 
Supp.  734. 

1687.  The  1904  amendment,  as  set  forth  herein,  was  held  un- 
constitutional in  Riglander  v.  Star  Co.,  98  App.  Div.  101,  90  N. 
Y.  Supp.  772,  as  depriving  the  judiciary  of  the  right  to  regu- 
late the  hearing  of  preferred  causes  according  to  the  circum- 
stances of  each  particular  case,  and  as  tending  to  deprive  liti- 
gants of  their  property  without  due  process  of  law.  It  follows 
that  the  granting  of  the  motion  now  is  discretionary,  subject  to 
the  rules  laid  down  in  the  text. 

1687,  n.  120b.  Followed  in  Carroll  v.  Pennsylvania  Steel  Co., 
96  App.  Div.  165,  89  N.  Y.  Supp.  199. 

1687,  n.  120c.  Followed  in  Carroll  v.  Pennsylvania  Steel 
Co.,  96  App.  Div.  165,  89  N.  Y.  Supp.  199.     Same  rule  applies 


APPENDIX.  41 3D 

since  the  1904  amendment  of  the  Code  has  been  declared  un- 
constitutional. Martin's  Bank  v.  Amazonas  Co.,  98  App.  Div. 
146,  90  N.  Y.  Supp.  734.  It  is  held  that  this  rule  does  not  ap- 
ply to  the  "special  term"  calendar.  Jackson  v.  Jackson,  44 
Misc.  44,  89  N.  Y.  Supp.  715. 

1690  to  1701.  Where  one  after  the  other,  a  motion  made  for 
leave  to  amend  by  setting  up  a  counterclaim  is  denied  for 
laches,  defendant  sues  on  the  counterclaim,  the  verdict  in  the 
original  action  is  reversed  on  appeal,  defendant  moves  to 
amend  by  setting  up  the  counterclaim  and  for  leave  to  discon- 
tinue the  independent  action  brought  by  him,  the  consolidation 
of  the  two  actions  is  properly  refused.  A.  &  S.  Henry  &  Co.  v. 
Talcott,  89  App.  Div.  76,  85  N.  Y.  Supp.  98. 

1696.  A  consolidation  is  properly  refused,  after  the  removal 
of  an  action  from  the  municipal  to  the  city  court  of  New  York, 
where  it  will  prejudice  the  plaintiff  in  an  attempt  to  enforce 
bonds  given  on  the  removal.  Gray  Lithograph  Co.  v.  Schul- 
man,  84  N.  Y.  Supp.  503. 

1704,  n.  14.  Walsh  v.  Empire  Brick  &  Supply  Co.,  90  App. 
Div.  500,  85  N.  Y.  Supp.  528. 

1708,  n.  43.  If  plaintiff's  attorney,  by  mistake  enters  judg- 
ment against  one  of  the  defendants  "jointly"  liable  who  was 
also  in  default,  the  court  may  relieve  the  plaintiff  from  such 
mistake  by  vacating  the  judgment  as  to  the  defendant  jointly 
liable.  Weston  v.  Citizens'  Nat.  Bank,  88  App.  Div.  330,  84 
N.  Y.  Supp.  743. 

1720.  Testimony  of  third  person  may  be  perpetuated.  Mat- 
ter of  Tweedie  Trad.  Co.,  105  App.  Div.  426,  94  N.  Y.  Supp.  167. 

1722,  n.  33d.  In  commenting  on  this  Code  subdivision, 
Laughlin,  J.,  in  Hebron  v.  Work,  101  App.  Div.  463,  92  N.  Y. 
Supp.  149,  remarks  as  follows:  "These  sections  should  be  re- 
vised to  harmonize  with  the  changes  made  in  the  law  by  the 
Legislature  and  to  conform  clearly  to  the  construction  placed 
thereon  by  the  courts,  to  the  end  that  new  beginners  may  not 
be  obliged  to  devote  days  of  study  to  ascertain  the  correct 
practice  in  obtaining  the  examination  of  a  party  or  a  witness, 
and  that  the  old  practitioners  and  the  courts  may  not  be  misled 
when  required  to  act  without  much  time  for  examination  or  re- 
flection." 


4  Hi  i  APPENDIX. 

1723.  It  is  not  necessary  to  expressly  state  that  the  appli- 
cant intends  to  read,  on  the  trial,  the  testimony  taken.  Jacobs 
v.  Mexican  Sugar  Refining  Co.,  45  Misc.  56,  90  N.  Y.  Supp. 
824. 

1723,  n.  37.  Jacobs  v.  Mexican  Sugar  Refining  Co.,  45  Misc. 
56,  90  N.  Y.  Supp.  824. 

1727,  n.  52.  Meres  v.  Emmons,  103  App.  Div.  381,  92  N.  Y. 
Supp.  1099.  The  Code  exception  to  this  rule  where  the  deposi- 
tion is  "that  of  a  party  taken  at  the  instance  of  an  adverse 
party"  applies  to  a  deposition  taken  by  a  co-party,  where  their 
interests  are  hostile.  Hetzel  v.  Easterly,  96  App.  Div.  517,  533, 
89  N.  Y.  Supp.  154. 

1734,  n.  85.  Affidavit  on  information  and  belief,  without 
stating  sources  of  information,  is  insufficient.  Fox  v.  Peacock, 
97  App.  Div.  500,  90  N.  Y.  Supp.  137. 

1735,  n.  97.  If  made  by  attorney,  the  reason  why  it  was  not 
made  by  the  party  must  be  stated.  It  is  not  sufficient  to  aver 
that  the  party  is  a  nonresident.  Fox.  v.  Peacock,  97  App.  Div. 
500,  90  N.  Y.  Supp.  137. 

1735,  n.  98.  The  statement  in  the  text  that  "the  application 
for  a  commission  may  be  made  at  any  time  within  twenty  days 
after  the  joinder  of  issue"  is  misleading  in  so  far  as  the  present 
practice  is  concerned.  By  the  Code  (§§  888,  908,)  the  applica- 
tion may  be  made  before  joinder  of  issue  or  even  after  judg- 
ment, in  some  cases.  "There  can  be  no  question  but  that  the 
court  has' power  to  issue  a  commission  at  any  time  before  the 
case  is  finally  decided,"  where  the  application  is  made  after 
the  joinder  of  an  issue  of  fact,  to  obtain  material  testimony  in 
the  prosecution  or  defense  of  the  action.  Mercantile  Nat.  Bank 
v.  Sire,  100  App.  Div.  459,  91  N.  Y.  Supp.  418. 

1735,  n.  99.  Valentine  v.  Rose,  45  Misc.  342,  90  N.  Y.  Supp. 
389. 

1750,  n.  176.  The  reasons  why  an  "oral"  examination  is 
necessary  must  be  shown  by  affidavits.  Woodward  v.  Skinner, 
92  N.  Y.  Supp.  259. 

1752,  §  1345.  In  Gowans  v.  Jobbins,  91  N.  Y.  Supp.  842,  the 
order  was  required  to  provide  that  the  actual  expenses  incurred 
by  one  of  the  attorneys  for  the  plaintiffs  in  attending  the  ex- 


APPENDIX.  4141 

aminations  before  the  commissioners  of  the  witnesses  produced 
on  behalf  of  the  defendant  be  paid  by  the  defendant,  and  also 
a  per  diem  allowance,  not  exceeding  $20,  for  the  time  such  at- 
torney is  necessarily  absent  from  home,  attending  such  exam- 
inations. Said  expenses  and  allowance  to  be  taxed  before  a 
justice  of  the  supreme  court  on  three  days'  notice.  The  pay- 
ment thereof  to  be  made  within  10  days  after  said  taxation. 
The  defendant  to  deposit,  as  designated  in  the  order,  a  suf- 
ficient sum,  stated  therein,  to  cover  the  expenses  and  allowance 
to  such  attorney,  or  to  give  satisfactory  security  therefor, 
within  10  days  after  service  of  a  copy  of  the  order,  together 
with  the  notice  of  entry  thereof.  In  lieu  of  the  examination  of 
said  witnesses  by  open  commission,  the  defendant  was  per- 
mitted, at  her  election,  made  within  20  days  thereof,  to  ex- 
amine said  witnesses  on  written  interrogatories  to  be  annexed 
to  the  commissions  to  be  issued,  conforming  to  the  practice  pre- 
scribed in  such  cases. 

1764,  n.  278.  Under  this  Code  provision,  where  the  party 
taking  the  deposition  reads  the  testimony  taken  on  the  direct 
examination,  but  the  other  party  refuses  to  read  the  testimony 
taken  on  the  cross-examination  whereupon  it  is  read  by  the 
former,  the  latter  may  object  to  any  question  as  irrelevant  or 
incompetent  though  a  part  of  his  own  cross-examination.  Cud- 
lip  v.  New  York  Evening  Journal  Pub.  Co.,  180  N.  Y.  85. 

1767,  n.  300.  Cudlip  v.  New  York  Evening  Journal  Pub. 
Co.,  180  N.  Y.  85. 

1773,  n.  331.  A  second  subpoena  will  not,  it  seems,  be  va- 
cated on  the  ground  that  it  was  irregular  to  issue  it  without 
notice  to  all  the  opposing  parties,  since  such  question  may  be 
raised  in  the  court  of  the  state  in  which  the  action  is  pending. 
Matter  of  Shawmut  Min.  Co.,  94  App.  Div.  156,  87  N.  Y.  Supp. 
1059. 

1774.  That  attorney  need  not,  on  his  examination,  disclose 
the  names  of  his  clients,  see  Matter  of  Shawmut  Min.  Co.,  94 
App.  Div.  156,  87  N.  Y.  Supp.  1059. 

1780.  Insert,  in  the  eleventh  line  from  the  top,  after  the 
word  "necessity,"  the  clause  "where  the  application  is  made 
before  the  joinder  of  issue."       Where  the.  cause  of  action  is 


4142  APPENDIX. 

in  equity  for  an  accounting,  it  is  unnecessary  to  examine  one 
of  the  defendants  before  trial  to  ascertain  the  condition  of  the 
account.  Louda  v.  Revillon,  99  App.  Div.  4:51,  91  N.  Y.  Supp. 
194.  Order  to  examine  to  show  prostitution  of  defendant 
granted  in  action  to  enjoin  defendant  from  holding-  herself  out 
as  plaintiff's  wife,  as  against  objection  that  the  matters  as  to 
which  the  examination  was  sought  were  irrelevant  and  imma- 
terial to  the  issues  in  the  action.  Bell  v.  Clarke,  45  Misc.  272, 
92  X.  V.  Supp.  163. 

1780,  n.  370.  An  examination  to  ascertain  facts  which  may 
be  found  in  public  statutes  and  ordinances,  and  in  public 
offices,  will  not  be  granted.  Mulcloon  v.  New  York  Cent.  &  H. 
R.  R.  Co.,  98  App.  Div.  169,  91  N.  Y.  Supp.  65. 

1780,  n.  371.  That  a  "party"  cannot  be  examined  before 
action  brought,  except  for  the  sole  purpose  of  perpetuating 
testimony,  is  held  in  In  re  Schlotterer,  105  App.  Div.  115,  93  N. 
Y.  Supp.  895,  but  such  holding,  inasmuch  as  it  practically  over- 
rules a  long  list  of  cases  in  which  the  examination  has  been  al- 
lowed to  frame  the  complaint,  is  of  doubtful  authority,  and  it  is 
questionable  whether  it  will  be  followed. 

1781,  n.  376.  See,  also,  Edelstein  v.  Goldfield,  92  N.  Y.  Supp. 
243. 

1781,  n.  380.  McCormack  v.  Coddington,  98  App.  Div.  13, 
90  N.  Y.  Supp.  218.  Especially  is  this  so  where  the  information 
can  be  obtained  on  the  trial  from  witnesses  other  than  parties 
to  the  action.  Knight  v.  Morgenroth,  93  App.  Div.  424,  87  N. 
Y.  Supp.  693.  An  examination  before  any  action  is  brought 
will  not  be  ordered  where  the  purpose  thereof  is  to  ascertain 
whether  the  applicant  has  a  cause  of  action  against  persons  not 
named.    Ellett  v.  Young,  95  App.  Div.  417,  88  N.  Y.  Supp.  661. 

1783,  n.  388.  Mulcloon  v.  New  York  Cent.  &  H.  R.  R.  Co., 
98  App.  Div.  169,  91  X.  Y.  Supp.  65. 

1785.  An  examination  should  not  be  ordered,  in  an  action 
between  partners  where  the  evidence  sought  to  be  obtained  is 
not  material  to  the  main  issue  but  will  only  become  material 
on  an  accounting  if  plaintiff  succeeds  on  the  main  issue.  Haus- 
ling  v.  Rheinfrank,  103  App.  Div.  517,  93  N.  Y.  Supp.  121,  and 
cases  cited. 


APPENDIX.  4143 

1786,  n.  405.  Whether  proposed  examinatiou  was  material 
to  the  issues  was  the  only  point  decided  in  McDonald  v.  Morse, 
96  App.  Div.  406,  89  X.  Y.  Supp.  176. 

1786,  §  1381.  In  an  action  for  an  accounting',  the  fact  that  a 
trial  of  the  issues  prior  to  the  interlocutory  judgment  will  re- 
sult in  disclosing  to  the  court  all  of  the  facts  necessary  for  a 
final  judgment  is  not  a  reason  for  refusing  to  allow  an  exami- 
nation of  the  defendant  as  to  all  matters  material  on  the  trial 
of  such  issues.    Griffen  v.  Davis,  99  App.  Div.  65,  90  N.  Y.  491. 

1790,  §  1384.  The  application  may  be  denied  because  of 
laches.  Whitney  v.  Rudd,  100  App.  Div.  492,  91  N.  Y.  Supp. 
429. 

1790,  n.  430.  A  deposition  of  a  party  cannot  be  taken,  at  his 
own  instance,  "during  the  trial,"  for  a  cause  existing  and 
known  to  the  party  and  his  counsel  prior  to  the  commencement 
thereof.  Hebron  v.  Work,  101  App.  Div.  463,  92  N.  Y.  Supp. 
149. 

1791,  §  1385.  A  federal  circuit  court  in  the  state  of  New 
York  cannot  make  an  order  for  the  examination  of  a  party 
before  trial  before  a  master  or  commissioner  appointed  pursu- 
ant to  section  870  of  the  Code  of  Civil  Procedure.  Hanks 
Dental  Ass'n  v.  International  Tooth  Crown  Co.,  194  U.  S.  303. 

1800,  n.  491.  McCormack  v.  Coddington,  98  App.  Div.  13, 
90  X.  Y.  Supp.  218.  An  order  for  the  examination  of  a  party 
before  trial,  after  joinder  of  issue,  cannot  be  obtained  unless  it 
fairly  appears  from  the  moving  papers  that  it  is  intended  to 
use  the  evidence  upon  the  trial.  Whitney  v.  Rudd,  100  App. 
Div.  492,  91  X.  Y.  429. 

1803,  n.  509.  In  an  action  for  an  accounting,  the  order  may 
require  an  examination  as  to  all  matters  material  to  the  issue. 
Griffen  v.  Davis,  99  App.  Div.  65,  90  X.  Y.  Supp.  491. 

1804,  n.  516.  Boyle  v.  Consolidated  Gas.  Co.,  46  Misc.  191, 
94  X.  Y.  Supp.  27. 

1804,  n.  517.  Matter  of  Thompson,  95  App.  Div.  542,  89  X. 
Y.  Supp.  4;  Matter  of  Sands,  98  App.  Div.  148,  90  X.  Y.  Supp. 
749.  A  corporation  ought  not  to  be  required  to  produce  its 
books,  upon  the  examination  of  one  of  its  officers  before  trial, 
to  enable  him  to  refresh  his  memory  therefrom  while  on  the 
stand,  unless  he  requires  their  assistance  in  order  to  testify 


4144  APPENDIX. 

concern i u u  the  matters  in  regard  to  which  he  is  to  be  examined. 
Bruen  v.  Whitman  Co.,  106  App.  Div.  248,  94  N.  Y.  Supp.  304. 

1805,  n.  520.  The  officer  of  the  corporation  cannot  refuse 
to  obey  the  order  to  produce  the  books  to  refresh  .his  memory, 
on  the  ground  that  they  may  tend  to  incriminate  him.  Pray  v. 
C.  A.  Blanchard  Co.,  95  App.  Div.  423,  88  N.  Y.  Supp.  650. 

1805,  n.  521.  The  affidavit  must  go  further  than  to  show  a 
necessity  that  the  books  be  produced.  It  must,  primarily,  show 
that  the  examination  of  the  person  sought  to  be  examined  is 
material  and  necessary.  Matter  of  Thompson,  95  App.  Div. 
542,  89  N.  Y.  Supp.  4. 

1806,  n.  525.  An  order  of  examination  should  be  vacated 
where  it  directs  the  examination  to  take  place  four  days  after 
the  granting  thereof,  without  stating  any  reason  for  a  notice 
of  less  than  five  days.  Osborn  v.  Barber,  105  App.  Div.  236,  93 
N.  Y.  Supp.  833. 

1815.  A  deposition  of  a  party  taken  by  his  co-party  may  be 
read  in  evidence  though  the  former  is  present  at  the  trial.  Het- 
zel  v.  Easterly,  96  App.  Div.  517,  533,  89  N.  Y.  Supp.  154. 

1817.  As  stated  in  volume  2,  the  Code  provision  for  a  physi- 
cal examination  applies  only  to  actions  for  personal  injuries, 
and  hence  in  other  actions  the  application  must  be  based  on  the 
inherent  power  of  the  court.  In  Gore  v.  Gore,  103  App.  Div. 
168,  93  N.  Y.  Supp.  396,  the  power  to  require  an  examination 
in  an  action  to  annul  a  marriage  on  the  ground  of  impotency, 
is  reiterated,  but  it  is  held  that  the  order  should  not  direct  the 
deposition  of  the  examining  physicians  to  be  taken  out  of  court 
and  before  trial.  Parker,  P.  J.,  in  the  opinion,  makes  the  fol- 
lowing statements:  "  I  can  discover  no  reason  why  a  referee 
should  be  appointed  to  conduct  the  proceeding  under  which 
such  examination  is  had,  or  to  take,  by  way  of  depositions,  the 
evidence,  or  any  part  of  the  evidence,  bearing  upon  that  ques- 
tion. An  order  can  be  made  that  the  defendant  submit  to  such 
an  examination  to  be  taken  upon  and  as  a  part  of  the  trial,  and 
the  evidence  of  the  surgeons  can  also  be  taken  as  a  part  of  such 
trial,  and  before  the  court.  And  while  I  would  not  hold  that  a 
reference  may  not,  in  any  instance,  be  ordered,  at  which  such 
evidence  may  be  taken,  I  am  of  the  opinion  that  it  should  never 
be  done  unless  peculiar  circumstances  clearly  require  it." 


APPENDIX.  4145 

1820,  n.  12.  Landau  v.  Citron,  47  Misc.  354,  93  N.  Y.  Supp. 
1111. 

1830,  n.  28.  See,  also,  Colin  v.  Hessel,  95  App.  Div.  548,  88 
N.  Y.  Supp.  1057. 

1832,  n.  38.  An  order  should  not  be  granted  under  this 
Code  provision  where  it  is  not  shown  that  the  moving  party  is 
ignorant  of  the  facts  proposed  to  be  discovered,  nor  where  ac- 
cess to  the  land  was  offered  by  the  adverse  party  who  imposed 
reasonable  conditions.  Sutter  v.  City  of  N.  Y.,  89  App.  Div. 
494,  85  N.  Y.  Supp.  989. 

1838,  n.  65.  So  where,  in  an  action  for  breach  of  contract, 
defendant  alleges  the  making  of  a  new  written  contract,  and 
plaintiff  shows  that  he  has  no  knowledge  of  the  new  contract, 
it  is  improper  to  refuse  to  plaintiff  an  order  for  inspection. 
Moore  v.  Encyclopaedia  Brittannica  Co.,  43  Misc.  618,  88  N.  Y. 
Supp.  133. 

1842,  n.  96.  This  rule,  however,  does  not  apply  where  the 
right  to  inspect  is  created  by  contract.  Fidelity  &  Casualty 
Co.  v.  Seagrist,  79  App.  Div.  614,  617,  80  N.  Y.  Supp.  227 ;  Mar- 
tin v.  NeAv  Trinidad  Lake  Asphalt  Co.,  87  App.  Div.  472,  84  N. 
Y.  Supp.  711 ;  Vallenberg  v.  Wahn,  103  App.  Div.  34,  92  N.  Y. 
Supp.  830. 

1843,  n.  100.  These  cases  do  not  apply  where  the  right  to 
inspection  is  created  by  contract.  Vallenberg  v.  Wahn,  103 
App.  Div.  34,  92  N.  Y.  Supp.  830. 

1845,  §  1447.  The  motion  will  not  be  granted  where  based 
on  an  affidavit  instead  of  a  petition.  Lee  v.  Winans,  99  App. 
Div.  297,  90  N.  Y.  Supp.  960. 

1848,  n.  131.  Dannenberg  v.  Heller  is  reported  in  the  official 
series  in  88  App.  Div.  548. 

1853.  A  party  should  not  be  compelled  to  produce  a  writing 
for  inspection,  at  a  photographer's  studio,  so  that  it  may  be 
photographed.  The  better  practice  is  to  direct  that  it  be  placed 
in  the  custody  of  the  county  clerk  with  permission  to  inspect 
and  photograph  it.  Beck  v.  Bohm,  95  App.  Div.  273,  88  N.  Y. 
584.  Where  the  party  whose  books  are  desired  to  be  inspected 
claims  that  the  discovery  is  sought  in  bad  faith,  for  ulterior 
purposes,  the  court  should  not  direct  that  the  inspection  be 
N.  Y.  Prac-260. 


414l>  appendix. 

conducted  by  plaintiff  with  the  aid  of  a  chartered  accountant, 
and  that  the  "defendants"  pay  the  charges  of  the  accountant. 
Cohn  v.  Hessel,  95  App.  Div.  548,  88  N.  Y.  Supp.  1057. 

1853,  n.  156.  Books  of  account,  in  daily  use,  which  cannot 
be  taken  from  the  place  of  business  without  serious  inconven- 
ience, should  not  be  ordered  deposited  with  a  referee,  but  the 
inspection  should  be  permitted  at  the  place  of  business.  Cohn 
v.  Hessel,  95  App.  Div.  548,  88  N.  Y.  Supp.  1057. 

1860.  It  must  appear  that  the  claim  made  by  the  person  not 
a  party  has  some  reasonable  foundation.  Hanna  v.  Manufac- 
turer's Trust  Co.,  104  App.  Div.  90,  93  N.  Y.  Supp.  304. 

1860,  n.  12.  Where  facts  exist  which  would  support  a  com- 
mon-law action  for  interpleader,  the  Code  substitute  is  proper. 
Helene  v.  Com.  Exeh.  Bank,  96  App.  Div.  392,  89  N.  Y.  Supp. 
310. 

1860,  n.  15.  Michigan  Sav.  Bank  v.  Coy,  Hunt  &  Co.,  45 
Misc.  40,  90  N.  Y.  Supp.  814. 

1862,  n.  30.  But  where  a  third  person  interposes  a  claim,  in 
replevin,  and  defendant  makes  no  claim  whatever  to  the  prop- 
erty, an  interpleader  will  be  granted  but  no  direction  will  be 
made  as  to  the  disposition  of  the  property  pending  the  action 
where  it  is  in  the  possession  of  the  plaintiff  pursuant  to  an  un- 
dertaking given  by  him.  Wright  Steam  Engine  Works  v.  N. 
Y.  Kerosene  Oil  Engine  Co.,  44  Misc.  580,  90  N.  Y.  Supp.  130. 

1865,  n.  50.  Lane  v.  Equitable  Life  Assur.  Soc,  102  App. 
Div.  470,  92  N.  Y.  Supp.  877.  By  interpleading  an  adverse 
claimant,  the  company  eliminates  all  question  as  to  the  validity 
of  the  policy  and  the  designation  of  the  beneficiary.  Sangun- 
itto  v.  Goldey,  88  App.  Div.  78,  84  N.  Y.  Supp.  989. 

1865,  n.  55.  This  statute  has  no  application  where  persons 
claiming  the  funds  in  litigation  have  only  a  future  interest  and 
not  a  present  right  to  the  funds.  Gifford  v.  Oneida  Sav.  Bank, 
99  App.  Div.  25,  90  N.  Y.  Supp.  693.  The  city  court  of  New 
York  may  grant  the  order.  Gottschall  v.  German  Sav.  Bank, 
45  Misc.  27,  90  N.  Y.  Supp.  896. 

1866,  §  1459.  Where  the  motion,  made  before  issue  joined, 
is  granted  but  no  order  finally  adjudicating  the  motion  is  en- 
tered, it  is  questionable  whether  defendant's  time  to  plead  is 


APPENDIX  4147 

not  suspended.     Michigan  Saw  Bank  v.  Coy,  Hunt  &  Co.,  45 
Misc.  40,  90  N.  Y.  Supp.  814. 

1868.  The  Code  nowhere  prescribes  the  procedure  to  be  fol- 
lowed after  the  entry  of  an  order  of  interpleader.  It  is,  how- 
ever, now  well  settled  that  such  procedure  should,  as  far  as 
practicable,  be  that  adopted  by  courts  of  equity  in  cases  of  in- 
terpleader in  analogous  cases.  Leave  to  serve  a  supplemental 
complaint  should  be  sought  as  provided  for  by  section  544  of 
the  Code.  The  supplemental  complaint  should  contain  substan- 
tially the  allegations  of  the  former  complaint,  and  such  further 
allegations  as  may  be  necessary  to  show  the  facts  preceding 
the  making  of  the  order  of  interpleader,  showing  the  substitu- 
tion of  the  present  defendant  in  place  of  the  original  defend- 
ant, and  the  latter 's  discharge  from  liability  upon  his  deposit 
in  court  of  the  amount  of  the  debt  or  the  delivery  of  the  prop- 
erty, and  the  compliance  with  all  the  provisions  of  the  order  of 
interpleader.  The  complaint  should  also  demand  judgment 
that  the  plaintiff  is  entitled  to  the  amount  so  deposited  or  the 
property  specified  in  the  complaint,  and  that  he  recover  the 
costs  of  the  action.  Within  the  time  prescribed  by  law  to  an- 
swer a  complaint,  the  subtituted  defendant  should  answer  the 
supplemental  complaint,  and  thus  present  the  issues  to  be  tried. 
If  the  substituted  defendant  fails  to  plead  or  to  obtain  an  ex- 
tension of  the  time  to  plead,  plaintiff  may  enter  judgment  ano! 
apply  to  the  court  for  an  order  directing  the  payment  to  him  of 
the  money  on  deposit.  Greenblatt  v.  Mendelsohn,  92  N.  Y. 
Supp.  963.  Consent  of  the  substituted  defendant  to  the  grant- 
ing of  the  order  of  interpleader  is  an  appearance  and  submis- 
sion to  the  jurisdiction  of  the  court  which  makes  the  service  of 
a  summons  unnecessary.  Id.  Objections  to  the  service  of  a 
supplemental  complaint  without  leave  of  court  are  waived  by 
admitting  "due  and  timely  service"  thereof.    Id. 

1869.  The  court,  on  discharging  an  insurance  society  from 
liability  for  the  proceeds  of  a  policy,  claimed  by  several  per- 
sons, on  its  payment  of  such  proceeds  into  court,  should  not 
award  costs  to  such  society,  to  be  deducted  from  such  proceeds. 
Lane  v.  Equitable  Life  Assur.  Soc,  102  App.  Div.  470,  92  X.  Y. 
Supp.  877. 


4 148  APPENDIX. 

1869,  n.  71).     Vandewater  v.  Mutual  Reserve  Life  Ins.  Co., 

44  Misc.  316,  89  N.  Y.  Supp.  845.  The  case  of  Wells  v.  Corn 
Ext'h.  Bank  is  reported  in  43  Misc.  377.  This  case  is  followed 
in  Marcus  v.  Aufses,  94  N.  Y.  Supp.  397,  and  Krugman  v.  Han- 
over Fire  Ins.  Co.,  94  N.  Y.  Supp.  399,  which  hold  that  inas- 
much as  the  granting  of  the  motion  in  the  city  court  of  New 
York  City  would  oust  said  court  of  jurisdiction,  because  it 
has  no  jurisdiction  over  equitable  actions,  the  motion  should 
be  refused.  The  latter  case  follows  the  rule  under  protest  and 
presents  good  reasons  why  the  contrary  rule  should  prevail. 

1870,  §  1463.  See,  also,  Helene  v.  Corn  Exch.  Bank,  96 
App.  Div.  392,  89  N.  Y.  Supp.  310. 

1874,  n.  17a.  The  last  two  cases  cited  in  the  note,  which  are 
contrary  to  the  rule  laid  down  in  the  text,  are  followed  in 
Larsen  v.  Interurban  St.  R.  Co.,  97  App.  Div.  150,  89  N.  Y. 
Supp.  649,  which  holds  that  there  is  no  distinction  between 
cases  where  the  guardian  ad  litem  is  the  father  and  those 
where  some  other  person  has  been  appointed  to  act. 

1875.  Consent  of  attorney  to  act  without  compensation 
must  be  one  of  the  motion  papers.  Traver  v.  Jackman,  98  App. 
Div.  287,  90  N.  Y.  Supp.  739. 

1875,  nn.  22,  25.  Traver  v.  Jackman,  98  App.  Div.  287,  90 
N.  Y.  Supp.  739. 

1878,  n.  46.  The  attorney  is  entitled,  however,  to  the  statu- 
tory costs,  and  hence  a  consent  to  act  "without  compensation 
except  the  statutory  costs"  is  sufficient.  Malkin  v.  Postal 
Typewriter  Co.,  95  App.  Div.  205,  88  N.  Y.  Supp.  403. 

1884,  n.  12.  Where  a  plaintiff  has  already  given  a  bond  in 
replevin  under  section  1699  of  the  Code  he  cannot  be  compelled 
to  give  an  additional  undertaking  to  secure  the  costs.  Vul- 
canite Portland  Cement  Co.  v.  Williams,  92  N.  Y.  Supp.  574. 

1884,  n.  13.  That  parties  who  intervene  as  defendants  can- 
not be  compelled  to  give  security  for  costs,  see  Riley  v.  Ryan, 

45  Misc.  151,  91  N.  Y.  Supp.  952. 

1885,  n.  18.  Whether  the  word  "city,"  as  used  in  reference 
to  Xew  York  City,  means  the  entire  city  as  now  constituted  or 
the  original  city  as  it  existed  prior  to  the  last  consolidation, 
quere.    Pelz  v.  Roth,  92  N.  Y.  Supp.  263. 


APPENDIX.  4149 

1886.  The  mere  fact  of  being  out  of  the  state  temporarily 
does  not  constitute  the  person  a  nonresident.  Thus,  where  the 
plaintiff  was  domiciled  in  this  state  at  the  time  of  the  com- 
mencement of  the  action  and  for  a  considerable  prior  period, 
having  a  residence  in  Brooklyn,  but  for  a  few  weeks,  in  order 
to  receive  care  for  her  injuries,  she  had  been  stopping  tempor- 
arily with  an  uncle  in  Jersey  City,  and  such  sojourn  included 
the  date  when  the  action  was  commenced,  but  her  household 
effects  remained  at  her  residence  in  Brooklyn,  and  she  had  re- 
turned to  actually  live  in  Brooklyn  before  the  determination  of 
the  motion,  she  was  not  a  nonresident.  Taylor  v.  Norris,  104 
App.  Div.  21,  93  N.  Y.  Supp.  356. 

1893,  n.  79.  It  is  necessary,  in  addition  to  the  fact  of  in- 
solvency, to  show  that  the  action  was  brought  in  bad  faith  or 
heedlessly,  or  that  the  plaintiff  will  probably  not  succeed.  De 
La  Fleur  v.  Barney,  45  Misc.  515,  92  N.  Y.  Supp.  926. 

1897,  n.  99.  The  right  to  demand  security  is  not  waived  by 
answering  the  complaint  without  moving  therefor,  where  after- 
wards the  complaint  and  summons  is  amended  so  as  to  change 
the  action  to  one  against  defendant  personally  instead  of  as 
trustee.  Boyd  v.  United  States  Mortg.  &  Trust  Co.,  90  App. 
Div.  32,  85  N.  Y.  Supp.  589. 
'  1897,  n.  100.  The  motion  may  be  denied  for  laches  where 
not  made  until  a  year  and  a  half  after  service  of  the  complaint, 
though  made  before  answering,  where,  in  the  interim,  the  de- 
fendant's time  to  answer  has  repeatedly  been  enlarged  by  suc- 
cessive stipulations,  and  when  the  condition  which  would  have 
entitled  the  defendant  to  security,  if  he  had  moved  promptly, 
no  longer  exists.  Gibbons  v.  Bush  Co.,  98  App.  Div.  283,  90  N. 
Y.  Supp.  603. 

1900,  n.  121.  An  affidavit  that  plaintiff  had  no  office  within 
the  limits  of  the  borough  of  Manhattan,  without  referring  to 
the  borough  of  the  Bronx,  is  insufficient.  Pelz  v.  Roth,  92  N.  Y. 
Supp.  263. 

1912,  n.  17.  Ingrosso  v.  Baltimore  &  O.  R.  Co.,  105  App.  Div. 
494,  94  N.  Y.  Supp.  177. 

1915,  n.  40.  The  stay  does  not  begin  to  operate  until  the 
order  has  been  served  on  the  party  required  to  pay  the  costs, 
irrespective  of  whether  the  time  for  the  payment  of  such  costs 


4150  APPENDIX. 

is  specified  in  the  order.  Sire  v.  Shubert,  93  App.  Div.  324,  87 
N.  Y.  Supp.  891.  Where  the  county  court  reverses,  with  costs, 
a  judgment  for  plaintiff,  and  grants  a  new  trial  before  a 
designated  justice  of  the  peace,  this  Code  provision  does  not 
apply  so  as  to  preclude  a  new  trial  before  the  payment  of  the 
costs  of  reversal.  Smith  v.  Cayuga  Lake  Cement  Co.,  105  App. 
Div.  307,  93  N.  Y.  Supp.  959.  Failure  to  pay  the  costs  of  a  re- 
versal, where  not  imposed  as  the  condition  of  granting  a  new 
trial,  but  entered  as  a  part  of  the  judgment,  is  not  a  ground  for 
a  stay.     Id. 

1915,  n.  45.  Entry  of  order  and  an  appeal  therefrom  are 
not  stayed  by  the  failure  to  pay  the  costs.  Allen  v.  Becket, 
84  N.  Y.  Supp.  1011. 

1915,  n.  46.  Jacobs  v.  Mexican  Sugar  Refining  Co.,  45  Misc. 
M,  90  N.  Y.  Supp.  824. 

1915,  n.  47.  Costs  of  an  appeal  from  an  order  are  "costs 
of  a  motion.''  Wasserman  v.  Benjamin,  91  App.  Div.  547,  86 
N.  Y.  Supp.  1022 ;  Cohen  v.  Krulewitch,  81  App.  Div.  147,  80 
N.  Y.  Supp.  689. 

1916.  The  inherent  power  of  the  court  to  stay  proceedings 
or  control  the  trial  of  an  action  is  one  which  must  be  exercised 
in  the  action  itself,  and,  where  it  is  sought  to  enjoin  parties 
from  proceeding  in  another  action,  such  relief  must  be  by  in- 
junction in  an  action  where  by  formal  prayer  it  is  demanded. 
It  is  not  permissible  to  apply  in  an  action  brought  for  an  en- 
tirely different  purpose,  to  stay  the  trial  of  another  action. 
David  Belasco  Co.  v.  Klaw,  98  App.  Div.  74,  90  N.  Y.  Supp. 
593.  That  plaintiffs  in  the  second  action  who  were  defendants 
in  the  original  action  could  have  set  up  their  cause  of  action 
as  a  counterclaim  in  the  first  action  does  not  require  the  grant- 
ing of  a  stay.  Jones  v.  Leopold,  95  App.  Div.  404,  88  N.  Y. 
Supp.  568;  Ogden  v.  Pioneer  Iron  Works,  91  App.  Div.  394, 
86  N.  Y.  Supp.  955. 

1918,  n.  64.  A  stay  should  not  be  granted  where  the  actions 
are  between  different  parties,  for  different  causes,  and  the 
determination  of  one  will  not  dispose  of  the  other.  Jenkins  v. 
Baker,  91  App.  Div.  400,  86  N.  Y.  Supp.  958. 

1921.  Application  should  be  based  on  notice.  Delahunty  v. 
Canfield,  106  App.  Div.  386,  94  N.  Y.  Supp.  815. 

1930,  §  1487.     On  a  motion  by  defendant  to  change  the  place 


APPENDIX.  .  4151 

of  trial  to  the  county  in  which  he  resides,  where  the  venue  is 
laid  in  a  county  in  which  neither  party  resides,  it  is  improper, 
against  defendant's  objections  to  change  the  place  of  trial  to 
the  county  of  plaintiff's  residence.  Ferrin  v.  Huxley,  94  App. 
Div.  211,  87  N.  Y.  Supp.  1005.  The  trial  should  not  be  changed 
to  a  county  in  which  neither  of  the  parties  nor  any  of  witnesses 
reside  unless  the  circumstances  are  so  unusual  that  the  ends  of 
justice  so  require.  Kavanaugh  v.  Mercantile  Trust  Co.,  94 
App.  Div.  575,  88  N.  Y.  Supp.  113. 

1933,  n.  34.  See,  also,  Pattison  v.  Hines,  105  App.  Div.  282, 
93  N.  Y.  Supp.  1071. 

1934,  n.  40.  Church  v.  Swigert,  99  App.  Div.  273,  90  N.  Y. 
Supp.  939 ;  Groff  v.  Rome  Metallic  Bedstead  Co.,  98  App.  Div. 
152,  90  N.  Y.  Supp.  691. 

1935,  n.  41.  Woolworth  v.  Klock,  92  App.  Div.  142,  86  N.  Y. 
Supp.  1111. 

1936,  n.  51.  But  while  the  rule  is  that  the  convenience  of 
parties  and  of  expert  witnesses  will  not  be  consulted,  yet  there 
is  a  class  of  expert  witnesses  that  form  an  exception  to  the 
rule,  and  such  are  those  who  may  testify  to  the  value  of  prop- 
erty from  personal  knowledge,  as  distinguished  from  those 
who  give  their  opinions  on  an  assumed  state  of  facts.  Groff  v. 
Rome  Metallic  Bedstead  Co.,  98  App.  Div.  152,  90  N.  Y.  Supp. 
691. 

1936,  n.  53.  Quinn  v.  Brooklyn  Heights  R.  Co.,  88  App.  Div. 
57,  84  N.  Y.  Supp.  738 ;  Hirshkind  v.  Mayer,  91  App.  Div.  416, 
86  N.  Y.  Supp.  836.  Action  should  not  be  changed  to  county 
adjacent  to  New  York  county,  in  the  absence  of  special  circum- 
stances. Kavanaugh  v.  Mercantile  Trust  Co.,  94  App.  Div. 
575,  88  N.  Y.  Supp.  113. 

1936,  n.  54.  The  venue  has  been  changed  to  the  city  of  New 
York  from  the  county  of  Lewis,  in  which  the  action  was 
brought,  where  defendant  had  seven  material  witnesses  resid- 
ing in  such  city,  and  plaintiff  was  the  only  material  witness  re- 
siding in  the  county  of  Lewis.  Larocque  v.  Conhaim,  45  Misc. 
234,  92  N.  Y.  Supp.  99. 

1942,  n.  77.  The  fact  that  the  demand  is  served  at  the  same 
time  that  defendant  interposes  a  demurrer,  and  that  thereafter 
the  demurrer  is  overruled  with  leave  to  answer  over,  is  imma- 


4152  APPENDIX. 

terial.  Washington  v.  Thomas,  103  App.  Div.  423,  92  N.  Y. 
Supp.  994. 

1945,  n.  93.  Bell  v.  Polymero,  99  App.  Div.  303,  90  N.  Y. 
Supp.  920. 

1947,  n.  105.  After  a  trial  resulting  in  a  disagreement  of 
the  jury,  a  motion  will  not  be  granted,  in  the  absence  of  excep- 
tional reasons  therefor.  Haines  v.  Reynolds,  95  App.  Div.  275, 
88  N.  Y.  Supp.  589.  Where  both  parties  notice  the  case  for 
trial  and  defendant  appears  at  the  term  for  which  the  case  is 
noticed  and  obtains  a  postponement  on  account  of  the  illness 
of  a  witness,  he  cannot  thereafter  move  for  a  change  for  the 
convenience  of  witnesses.  Coleman  v.  Hayes,  92  App.  Div.  575, 
87  N.  Y.  Supp.  12. 

1947,  n.  111.  Lindsley  v.  Sheldon,  43  Misc.  116,  88  N.  Y. 
Supp.  192. 

1949.  Where  both  parties  act  on  the  assumption  that  the 
county  named  in  the  summons  is  the  place  of  trial,  the  mere 
fact  that  through  inadvertence  the  county  named  in  the  com- 
plaint differs  from  that  named  in  the  summons  does  not  change 
the  place  of  trial.  Bell  v.  Polymero,  99  App.  Div.  303,  90  N.  Y. 
Supp.  920. 

1950,  n.  126.  Followed  in  Ferrin  v.  Huxley,  94  App.  Div. 
211,  87  N.  Y.  Supp.  1005. 

1952.  The  residence  of  the  parties  should  be  stated  as  of  the 
time  of  the  commencement  of  the  action.  Burke  v.  Frenkel, 
97  App.  Div.  19,  89  N.  Y.  Supp.  621. 

1968.  After  a  determination  that  plaintiff  is  not  entitled  to 
an  inspection  of  defendant's  books,  and  a  subpoena  duces 
tecum  against  defendant  to  produce  his  books  so  that  he  can, 
by  reference  to  them,  answer  questions  pertinent  to  the  in- 
quiry, defendant  cannot  be  compelled  to  answer  a  question 
which  requires  him  to  give  entries  in  the  book.  Franklin  v. 
Judson,  99  App.  Div.  323,  91  N.  Y.  Supp.  100. 

1974,  n.  40.  Cited  in  People  v.  Mills,  178  N.  Y.  283,  287, 
308,  which  was  a  criminal  case. 

1996.  The  offer  and  acceptance  constitute  a  contract  and 
are  to  be  construed  according  to  the  condition  of  the  pleadings 
at  the  time  the  offer  was  made.  Construction  of  offer  in  a  suit 
for  specific  performance,  see  Abel  v.  Bischoff,  99  App.  Div. 
248,  90  N.  Y.  Supp.  990. 


APPENDIX.  4153 

1999,  n.  81.  In  McNally  v.  Rowan,  101  App.  Div.  342,  92  N. 
Y.  Supp.  250,  the  court  states  that  the  case  cited  in  this  note  is 
not  the  law  since  the  amendment  of  the  mechanics'  lien  law  in 
1885  by  permitting  a  personal  judgment  where  the  lien  is  not 
established.  It  follows  that  where  the  offer  of  judgment  is 
merely  for  a  sum  of  money,  a  judgment,  though  for  a  less  sum, 
where  a  lien  directed  to  be  enforced  by  a  sale  of  the  premises 
and  a  deficiency  judgment,  if  necessary,  is  more  favorable  to 
plaintiff. 

2000,  nn.  85,  87.  Where  a  plaintiff  recovered  a  judgment 
for  a  few  cents  less  than  the  offer  made  before  answering,  but 
the  judgment  extinguished  a  counterclaim  for  twenty-five  dol- 
lars which  would  not  have  been  extinguished  had  the  offer  of 
judgment  been  accepted,  the  judgment  recovered  is  more 
favorable  than  the  offer.  Smith  v.  Sheldon,  94  App.  Div.  497, 
87  N.  Y.  Supp.  1099. 

2013.  The  court  has  power  to  relieve  a  defendant  from  the 
effect  of  a  tender  which,  after  the  commencement  of  the  action, 
is,  by  order,  paid  into  court,  where  the  court  has  permitted  the 
defendant  to  amend  his  answer  by  withdrawing  his  admission 
of  any  indebtedness  to  the  plaintiff  and  by  setting  up  a  count- 
er-claim and  demanding  an  affirmative  judgment.  Mann  v. 
Sprout,  102  App.  Div.  60,  92  N.  Y.  Supp.  372. 

2022,  n.  37.  The  check  or  draft  must  be  drawn  in  precise 
accordance  with  the  order  of  court,  or  the  trust  company  may 
refuse  to  pay  it.  So  held  where  representative  character  of 
payees  was  not  as  fully  described  in  check  as  in  order  of  court. 
Holt  v.  Colonial  Trust  Co.,  97  App.  Div.  305,  89  N.  Y.  Supp. 
955. 

2024,  n.  2.  Where  an  offer  of  foreign  records  to  prove  a 
material  fact  in  issue  was  rejected  because  of  the  failure  to 
prove  the  foreign  law  under  which  such  records  were  kept, 
the  court  should  not  refuse  an  application  to  withdraw  a  juror 
on  the  ground  of  surprise.  Pirrung  v.  Supreme  Council  of 
Catholic  Mut.  Ben.  Ass'n,  104  App.  Div.  571,  93  N.  Y.  Supp.  575. 

2025,  n.  7.  Where  defendant  in  a  personal  injury  case  was 
entitled  to  presume  that  a  second  trial  of  the  action  would  be 
<<n  the  same  theory  as  the  first,  and  plaintiff  was  allowed  to 
amend  his  complaint  on  the  second  trial  by  stating  a  different 


4154  APPENDIX. 

ground  of  negligence,  the  court  should  permit  a  continuance  to 
enable  defendant  to  procure  new  witnesses.  McDonald  v.  Hol- 
brook,  C.  &  D.  Contracting  Co.,  105  App.  Div.  90,  93  N.  Y.  Supp. 
920. 

2026,  n.  18.  Hosman  v.  Kinneally,  43  Misc.  76,  86  N.  T. 
Supp.  263. 

2026,  n.  19.  See,  also  Faist  v.  Metropolitan  St.  R.  Co.,  89 
App.  Div.  593,  85  N.  Y.  Supp.  646. 

2026,  nn.  18,  30.  In  the  absence  of  proof  of  surprise,  the 
denial  of  an  application  to  adjourn  for  the  purpose  of  calling 
another  witness,  made  near  the  close  of  defendant's  testimony, 
is  not  an  abuse  of  discretion.  Block  v.  Sherry,  43  Misc.  342. 
87  N.  Y.  Supp.  160. 

2031,  n.  55.  Where  a  party  considers  that  the  terms  im- 
posed as  a  condition  of  granting  his  request  for  a  postpone- 
ment are  onerous  and  unsatisfactory,  he  should  decline  to  ac- 
cept the  order  on  the  terms  imposed,  and  proceed  with  the 
trial.  Rawson  v.  Silo,  105  App.  Div.  278,  93  N.  Y.  Supp.  416. 
After  the  trial  of  an  action  has  commenced,  and  one  of  the 
parties  asks  to  be  allowed  to  withdraw  a  juror  and  have  the 
trial  postponed  for  the  term,  it  is  not  an  abuse  of  discretion  for 
the  court  to  require,  as  a  condition  of  granting  the  request,  that 
the  party  making  the  request  pay  to  his  opponent  a  term  fee,  a 
trial  fee,  and  the  witnesses'  fees  of  the  term.     Id. 

2039,  n.  9.  Notice  of  the  application  must  be  given  to  the 
general  or  testamentary  guardian.  Van  Williams  v.  Elias,  106 
App.  Div.  288,  94  N.  Y.  Supp.  611. 

2039,  n.  14.  Van  Williams  v.  Elias,  106  App.  Div.  288,  94  N. 
Y.  Supp.  611. 

2057.  The  proceeding  relating  to  the  selection  of  a  special 
jury,  as  fixed  by  sections  1063-1069  of  the  Code  of  Civil  Pro- 
cedure, must  be  strictly  followed,  and  cannot  be  disregarded  in 
any  respect.  Industrial  &  General  Trust  v.  Tod,  104  App.  Div. 
517,  34  Civ.  Proc.  R.  287,  93  N.  Y.  Supp.  725.  A  list  of  jurors 
selected  in  the  absence  of  the  parties  or  their  counsel,  the  stat- 
ute directing  that  it  should  be  done  in  their  presence,  is  irregu- 
lar, and  ought  to  be  set  aside.  The  purpose  sought  to  be  accom- 
plished by  requiring  that  the  names  be  selected  in  the  presence 
of  the  parties  or  their  counsel  tends  to  insure  the  selection  of  a 


APPENDIX.  4155 

jury  contemplated  by  the  statute,  viz.,  "most  indifferent  be- 
tween the  parties  and  best  qualified  to  try  the  issue. ' '  Id.  ' '  It 
would  seem,  in  view  of  the  fact  that  the  statute  requires  the  se- 
lection of  the  names  of  persons  best  qualified  to  try  the  issue, 
that  the  commissioner,  before  making  the  selection,  should 
familiarize  himself  with  it;  otherwise  it  is  difficult  to  see  how 
he  can  act  intelligently  or  do  what  the  statute  requires."     Id. 

2058,  n.  24.  Where  the  court,  at  special  term,  has,  in  the 
first  instance,  directed  that  the  jury  be  struck,  and  it  after- 
wards appears  that  any  irregularity  occurred  in  the  selection 
of  the  jury  which  would  render  the  proceeding  a  nullity  or 
jeopardize  the  result  sought  to  be  obtained  by  such  jury,  the 
special  term  has  the  power  and  it  is  its  duty  to  direct  that  the 
jury  as  selected  be  set  aside  and  discharged,  and  a  new  jury 
be  struck.  Industrial  &  General  Trust  v.  Tod,  104  App.  Div. 
517,  34  Civ.  Proc.  R.  287,  93  N.  Y.  Supp.  725. 

2063,  n.  7.  People  ex  rel.  Lazarus  v.  Coleman,  99  App.  Div. 
88,  91  N.  Y.  Supp.  432. 

2072,  n.  77.  The  special  proceeding  is  suspended  by  the 
death  of  a  sole  party  so  that  the  referee  has  no  power  to  make 
or  file  a  report  against  such  party  until  a  substitution  of  the 
personal  representative  or  the  successor  in  interest  of  the  de- 
ceased.    In  re  Venable,  93  N.  Y.  Supp.  1074. 

2073,  n.  80.  This  Code  provision  does  not  authorize  the 
prosecution  of  an  action  by  one  who  has  assigned  all  his  inter- 
est pending  the  action  and  thereafter  amended  the  complaint 
so  as  to  seek  new  relief.  Poster  v.  Central  Nat.  Bank,  93  N.  Y. 
Supp.  603. 

2073,  n.  81.  Hawkins  v.  Mapes-Reeve  Const.  Co.,  178  N.  Y. 
236,  242. 

2081,  n.  141.  This  Code  provision  relates  to  representatives 
and  successors  over  whom  jurisdiction  exists  in  the  actions, 
and  which  do  not  include  foreign  representatives  in  actions 
at  law.  The  action  cannot  be  revived  against  a  foreign  executor 
where  none  of  the  assets  are  within  the  state  and  no  ancillary 
letters  have  been  issued.  MeGrath  v.  "Weiller,  98  App.  Div.  291, 
90  N.  Y.  Supp.  420. 

2095,  n.  249.  Where  plaintiff  assigned  his  interest  in  a  co- 
partnership to  one  of  the  defendants,  who,  together  with  plaint- 


4.150  APPENDIX. 

iff's  two  former  partners  and  others  becoming  associated  with 
them  at  the  lime,  continued  the  business,  and  plaintiff  sned 
the  old  and  new  partners  to  cancel  the  assignment  on  the 
ground  that  it  was  fraudulently  procured  by  the  new  partners, 
and  demanded  an  accounting  by  all  of  defendants  as  of  the 
date  of  the  transfer,  it  was  held  necessary  to  revive  the  action 
against  the  representatives  of  one  of  the  new  partners  who  died 
after  the  joinder  of  issue.  Hausling  v.  Rheinfrank,  103  App. 
Div.  517,  93  N.  Y.  Supp.  121. 

2120,  n.  125.  While  ordinarily,  where  it  is  proper  to  impose 
costs  as  a  condition,  the  plaintiff  should  be  required  to  pay  all 
tlic  taxable  costs  to  the  date  of  the  motion,  yet  the  court,  in  its 
discretion,  may,  in  a  proper  case,  impose  more  moderate  terms 
as  to  costs.  Susman  v.  Dangler,  95  App.  Div.  158,  88  N.  Y. 
Supp.  527. 

2121,  n.  134.  This  is  the  rule  where  the  settlement  is  col- 
lusive to  defraud  plaintiff's  attorney.  Rogers  v.  Marcus,  93 
App.  Div.  552,  87  N.  Y.  Supp.  941.  It  is  not  proper,  however, 
where  the  discontinuance  is  because  of  a  settlement  and  the 
plaintiff  is  financially  responsible,  to  fix  the  amount  of  the  at- 
torney's lien  and  direct  the  payment  to  the  attorney  of  the  sum 
fixed,  as  the  condition  of  allowing  a  discontinuance.  Witmark 
v.  Perley,  43  Misc.  14,  80  N.  Y.  Supp.  750. 

2124,  n.  1.  Rule  applied  to  mandamus  proceedings  in  People 
ex  rel.  Arfken  v.  York,  100  App.  Div.  590,  94  N.  Y.  Supp.  812. 

2128.  Service  of  notice  of  trial  after  the  making  of  the  mo- 
tion to  dismiss  is  ineffectual.  Fisher  Malting  Co.  v.  Brown,  92 
App.  Div.  251,  87  N.  Y.  Supp.  37. 

2140,  n.  20.  Where  real  property  has  been  conveyed  by  a 
bankrupt  to  a  creditor  to  secure  a  title  to  the  property  in  the 
trustee,  a  resort  to  a  court  of  equity  is  necessary  to  declare 
void  the  deed  or  conveyance  or  to  compel  the  creditor  to  recon- 
vey.  Such  an  action  is  in  equity ;  but  where  the  property  trans- 
ferred is  personal  property,  and  no  written  instrument  is  re- 
quired to  be  set  aside,  and  no  equitable  relief  is  necessary  to 
enable  the  trustee  to  recover  the  property  or  its  value  from 
creditor  to  whom  it  has  been  transferred,  the  action  is  one 
which  must  be  tried  by  a  jury.  Stern  v.  Mayer,  99  App.  Div. 
427,  91  N.  Y.  Supp.  292. 


APPENDIX.  4157 

2141.  Plaintiff  cannot,  by  an  assignment  of  interests  in  his 
claim,  deprive  defendant  of  his  right  to  a  jury  trial  in  an  action 
otherwise  an  action  at  law.  Butterly  v.  Deering,  102  App.  Div. 
395,  92  N.  Y.  Supp.  675. 

2142,  n.  36.  The  McNulty  case  is  distinguished  in  Tucker 
v.  Edison  Elec.  Illuminating  Co.,  100  App.  Div.  407,  91  N.  Y. 
Supp.  439,  which  holds  that  the  action  is  triable  at  special  term, 
on  the  ground  that  in  the  McNulty  case  it  appeared  at  the  time 
that  the  jury  trial  was  demanded  that  the  plaintiff  had  ceased 
to  be  entitled  to  the  injunctive  relief  demanded. 

2147,  n.  72.  Where  a  reference  is  ordered  on  consent  and  it 
proceeds  without  objection,  the  right  to  a  jury  trial  is  waived. 
Brooklyn  Heights  R.  Co.  v.  Brooklyn  City  R.  Co.,  105  App.  Div. 
88,  93  N.  Y.  Supp.  849. 

2152,  n.  115.  Vandewater  v.  Mutual  Reserve  Life  Ins.  Co., 
44  Misc.  316,  89  N.  Y.  Supp.  845.    See,  also,  vol.  1,  p.  1869. 

2159,  n.  161.  This  discretion  will  not  be  interfered  with  by 
the  appellate  division,  on  appeal,  unless  there  are  controlling 
reasons  therefor.  Wurster  v.  Armfield,  98  App.  Div.  298,  90  N. 
Y.  Supp.  699. 

2160.  In  New  York  county,  because  of  the  congested  condi- 
tion of  the  trial  term  calendar,  issues  will  not  be  framed  except 
in  an  extraordinary  case.  Evans  v.  National  Broadway  Bank, 
88  App.  Div.  549,  85  N.  Y.  Supp.  101. 

2163,  n.  190.  Kelly  v.  Home  Sav.  Bank,  103  App.  Div.  141, 
92  N.  Y.  Supp.  578. 

2184.  Subdivision  4  is  amended  by  Laws  1904,  c.  416,  but  it 
is  submitted  that  the  change  is  merely  a  transposition  of  words. 
Subdivision  6  is  amended  by  Laws  1905,  c.  436,  by  adding  to 
those  entitled  to  exemption  from  jury  service  the  following: 
"An  editor,  editorial  writer,  artist,  or  reporter  of  a  daily  news- 
paper or  press  association  regularly  employed  as  such  and  not 
following  any  other  vocation." 

2198,  n.  86a.  It  is  error  to  allow  the  jury  to  be  asked,  in  a 
personal  injury  case,  whether  they  are  connected  with  a  certain 
insurance  company  which  insures  against  accidents.  Lipschutz 
v.  Ross,  14  Ann.  Cas.  52,  84  N.  Y.  Supp.  32.  But  it  is  proper, 
irrespective  of  the  motive  of  counsel  in  asking  the  question,  in 
a  personal  injury  case,  to  ask  the  proposed  jurors  if  they  are 


4L5S  APPENDIX. 

interested,  as  agents  or  stockholders,  in  any  corporation  insur- 
ing against  liability  for  negligence.  Grant  v.  National  R. 
Spring  Co.,  100  App.  Div.  234,  91  N.  Y.  Supp.  805. 

2203.  When  ;i  will  is  admitted  to  probate  and  on  appeal  an 
issue  is  ordered  before  the  supreme  court  as  to  whether  the  will 
in  question  was  revoked  by  testator,  the  right  to  open  and  close 
rests  with  the  contestant  rather  than  the  proponent  of  the  will. 
Matter  of  Hopkins'  Will,  97  App.  Div.  126,  89  N.  Y.  Supp.  561. 

2211,  n.  172.  Eckes  v.  Stetler,  98  App.  Div.  76,  90  N.  Y. 
Supp.  473. 

2220,  n.  223.  This  Code  section  does  not  authorize  the  court 
to  direct  a  view  in  an  action  for  work  done  and  material  fur- 
nished. Buffalo  Structural  Steel  Co.  v.  Dickinson,  98  App. 
Div.  355,  90  N.  Y.  Supp.  268. 

2223,  n.  231.     Kurz  v.  Doerr,  180  N.  Y.  88,  91. 

2223,  n.  232.  It  seems  that  proof  of  the  bias  of  a  witness 
may  be  elicited  before  his  material  testimony  is  given.  Fine 
v.  Interurban  St.  R.  Co.,  45  Misc.  587,  91  N.  Y.  Supp.  43. 

2232,  n.  281.  Cullinan  v.  Quinn,  95  App.  Div.  492,  88  N.  Y. 
Supp.  963. 

2236,  n.  300.  The  question  of  qualification  of  an  expert 
should  not  be  postponed  for  determination  by  cross-examina- 
tion. Dolan  v.  Herring-Hall-Marvin  Safe  Co.,  105  App.  Div. 
366,  94  N.  Y.  Snpp.  241. 

2237,  n.  308.  Where  the  witness  is  hostile,  and  was  called 
under  a  misapprehension  as  to  what  his  testimony  would  be, 
leading  questions  are  permissible.  Zilver  v.  Robert  Graves  Co., 
106  App.  Div.  582,  94  N.  Y.  Supp.  714. 

2237,  n.  310.  See  Brand  v.  Borden's  Condensed  Milk  Co., 
95  App.  Div.  64,  88  N.  Y.  Supp.  460. 

2238.  The  memorandum  itself  is  not  evidence.  Garber  v. 
New  York  City  R.  Co.,  92  N.  Y.  Supp.  722.  Where  a  witness 
who  is  not  hostile  testifies  that  he  did  not  converse  with  a 
named  person  on  a  specified  evening,  counsel  may  call  his  at- 
tention to  his  testimony  given  on  a  previous  trial.  Hart  v.  Ma- 
loney,  101  App.  Div.  37,  91  N.  Y.  Supp.  922. 

2238,  n.  313.  A  witness  who  testifies  as  to  the  price  of  milk 
at  a  certain  time  may  refer  to  a  newspaper  for  the  purpose  of 
refreshing  his  recollection  as  to  the  price  of  milk  at  such  time, 


APPENDIX.  4159 

proof  having  been  given  that  such  paper  was  recognized  by 
milkmen  as  the  standard  authority  on  the  exchange  price  of 
milk.    Blanding  v.  Cohen,  101  App.  Div.  442,  92  N.  Y.  Supp.  93. 

2238,  n.  314.     Taft  v.  Little,  178  N.  Y.  127,  131. 

2239,  n.  317.  Morris  v.  New  York  City  R.  Co.,  91  N.  Y. 
Supp.  16. 

2241,  n.  327.  Facts  assumed  need  not  be  established  beyond 
controversy,  it  being  sufficient  that  there  is  some  evidence  to 
support  them.  Becker  v.  Metropolitan  Life  Ins.  Co.,  99  App. 
Div.  5,  90  N.  Y.  Supp.  1007. 

2246.  A  witness  may  be  asked  how  much  he  has  been  paid 
to  testify  where  he  admits  having  been  paid.  Brown  v.  Inter- 
urban  St.  R.  Co.,  43  Misc.  374,  87  N.  Y.  Supp.  461. 

2246,  n.  367.  Hirsh  v.  American  Dist.  Tel.  Co.,  92  N.  Y. 
Supp.  794. 

2247.  Ordinarily,  a  party  may  show  how  his  adversary's 
witness  was  known  or  discovered,  by  whom  he  was  subpoenaed, 
how  he  has  demeaned  himself  during  the  trial,  with  whom  he 
has  associated  or  held  converse,  and  any  other  circumstances 
which,  like  these,  may  indicate  whether  the  witness  is  indiffer- 
ent or  more  or  less  a  partisan.  Iaquinto  v.  Bauer,  93  N.  Y. 
Supp.  388. 

2247,  n.  373.  Nathan  v.  Uhlmann,  101  App.  Div.  388,  92  N. 
Y.  Supp.  13. 

2251,  n.  402.  Gleason  v.  Metropolitan  St.  R.  Co.,  99  App. 
Div.  209,  90  N.  Y.  Supp.  1025. 

2251,  n.  404.  Sexton  v.  Onward  Const.  Co.,  93  App.  Div.  143, 
87  N.  Y.  Supp.  550.  Counsel  may  show  in  full  what  has  been 
brought  out  in  part  on  the  cross-examination.  Sexton  v.  On- 
ward Const.  Co.,  93  App.  Div.  143,  87  N.  Y.  Supp.  550. 

2257.  The  evidence  of  contradictory  statements  may  consist 
of  written  declarations.  Fox  v.  Erbe,  100  App.  Div.  343,  91  N. 
Y.  Supp.  832.  A  judgment  roll  and  an  examination  in  supple- 
mentary proceedings,  which  contained  declarations  of  a  party 
inconsistent  with  those  given  upon  a  trial  which  sought  to  set 
aside  a  transfer  as  fraudulent,  are  not  only  admissible  against 
the  person  making  them  but  also  against  other  parties  to  the 
action  as  bearing  upon  the  credibility  of  the  witness.     Id. 

2258,  n.  449.     When  it  is  necessary  that  the  whole  of  the 


41  ill )  APPENDIX. 

contradictory  writing  be  read  in  evidence,  see  full  discussion  in 
ILinlou  v.  Elirich,  178  N.  Y.  474. 

2259,  n.  451.  Wimmer  v.  Metropolitan  St.  R.  Co.,  92  App. 
Div.  258,  86  N.  Y.  Supp.  1052 ;  Goldberg  v.  Metropolitan  St.  R. 
Co.,  84  N.  Y.  Supp.  211. 

2261,  n.  466.  Hetzel  v.  Easterly,  96  App.  Div.  517,  89  N.  Y. 
Supp.  154. 

2263,  n.  472.  A  party  is  not  precluded  from  showing  bias  of 
the  witness,  or  that  his  recollection  of  the  occurrence  was  unre- 
liable, because  of  the  fact  that  he  was  first  called  by  him;  the 
witness'  first  material  testimony  having  been  elicited  by  the  op- 
posing party.  Fine  v.  Interurban  St.  R.  Co.,  45  Misc.  587,  91 
X.  Y.  Supp.  43. 

2263,  n.  476.  Ruhl  v.  Heintze,  97  App.  Div.  442,  89  N.  Y. 
Supp.  1031. 

2265,  n.  485.  Buckley  v.  Westchester  Lighting  Co.,  93  App. 
Div.  436,  87  N.  Y.  Supp.  763. 

2267,  n.  501.  Competency  as  expert.  Jenks  v.  Thompson, 
179  N.  Y.  20. 

2268,  n.  504.     Gerry  v.  Siebrecht,  84  N.  Y.  Supp.  250. 

2268,  n.  507.  Reed  v.  Spear,  107  App.  Div.  144,  94  N.  Y. 
Supp.  1007. 

2269,  n.  520.  Fox  v.  Erbe,  100  App.  Div.  343,  91  N.  Y.  Supp. 
832. 

2270,  n.  523.  Schutz  v.  Union  R.  Co.,  181  N.  Y.  33,  36; 
Date  v.  New  York  Glucose  Co.,  104  App.  Div.  207,  93  N.  Y. 
Supp.  249 ;  Davis  v.  Reflex  Camera  Co.,  105  App.  Div.  96,  93  N. 
Y.  Supp.  844. 

2270,  n.  530.  In  a  case  where  it  is  the  practice  to  allow  but 
one  expert  witness  on  a  side,  the  calling  another  expert  after 
the  sustaining  an  objection  to  the  deposition  of  an  expert  on 
the  ground  that  he  was  not  shown  to  be  qualified,  does  not 
waive  the  exception  to  the  ruling.  Wallach  v.  Manhattan  El. 
R.  Co.,  105  App.  Div.  422,  94  N.  Y.  Supp.  574. 

2271,  n.  532.  The  rule  is  different,  however,  where  the  court 
states  its  intention  to  strike  out  the  evidence  to  which  the  party 
objects  because  he  desires  to  rebut  it.  Fox  v.  Metropolitan  St. 
R.  Co.,  93  App.  Div.  229,  87  N.  Y.  Supp.  754. 

2271,  n.  535.  Furthermore  the  ruling  cannot  be  reviewed 
until  after  verdict.    Balmsen  v.  Horwitz,  90  N.  Y.  Supp.  428. 


APPENDIX.  4161 

2272,  In  the  absence  of  a  motion  to  strike  out  evidence  not 
called  for  by  the  question  asked,  no  reversal  will  be  granted 
because  of  such  evidence.  Roseblatt  v.  Joseph  M.  Cohen  House 
Wrecking  Co.,  91  App.  Div.  413,  86  N.  Y.  Supp.  801. 

2273,  n.  549.  Pescia  v.  Societa  Co-Op.,  etc.,  91  App.  Div. 
506,  86  N.  Y.  Supp.  952 ;  Walker  v.  McCormick,  88  N.  Y.  Supp. 
406.  Failure  to  object  is  not  fatal  where  the  answer  is  not 
responsive.  Helmken  v.  City  of  N.  Y.,  90  App.  Div.  135,  85  N. 
Y.  Supp.  1048. 

2274,  n.  562.  But  the  motion  is  timely  though  not  made 
until  the  close  of  the  testimony  where  the  inadmissibility  of  the 
evidence  could  not  be  known  until  the  evidence  was  all  in. 
Wilkins  v.  Nassau  Newspaper  Delivery  Exp.  Co.,  98  App.  Div. 
130,  90  N.  Y.  Supp.  678. 

2275,  n.  565.  Powell  v.  Hudson  Valley  R.  Co.,  88  App.  Div. 
133,  84  N.  Y.  Supp.  337. 

2276,  n.  577.  Fox  v.  Metropolitan  St.  R.  Co.,  93  App.  Div. 
229,  87  N.  Y.  Supp.  754. 

2277,  n.  578.  Failure  to  strike  out  until  just  before  the 
judge's  charge  is  to  be  delivered  does  not  cure  the  error. 
Harkins  v.  Queen  Ins.  Co.,  106  App.  Div.  170,  94  N.  Y.  Supp. 
140. 

2280.  A  dismissal  of  a  complaint  in  an  action  at  law,  is 
equivalent  to  a  nonsuit,  which,  in  effect,  is  a  determination  that 
the  plaintiff's  evidence  is  not  sufficient  to  sustain  his  cause  of 
action.  But  after  the  defendant  has  been  heard,  and  his  evi- 
dence taken,  if  upon  all  the  evidence  the  plaintiff  has  estab- 
lished no  cause  of  action,  the  proper  disposition  of  the  case  is 
a  direction  of  a  verdict  for  the  defendant  and  not  a  dismissal 
of  the  complaint,  since  in  an  action  at  law  a  dismissal  of  the 
complaint  does-  not  determine  the  merits  of  the  action.  Niagara 
Fire  Ins.  Co.  v.  Campbell  Stores,  101  App.  Div.  400,  92  N.  Y. 
Supp.  208;  Stumpf  v.  Hallahan,  101  App.  Div.  383,  91  N.  Y. 
Supp.  1062. 

2280,  n.  593.  There  is  no  authority  for  dismissing  a  com- 
plaint upon  the  merits  on  a  motion  for  a  nonsuit  at  the  close  of 
the  plaintiff's  case,  or  at  the  close  .of  the  entire  evidence,  in  an 
action  triable  and  tried  before  a  jury.  Harris  v.  Buchanan, 
100  App.  Div.  403,  91  N.  Y.  Supp.  484. 
N.  Y.  Prac.  -  261. 


4162  APPENDIX. 

2292.  On  directing  a  verdict  for  plaintiff,  the  court  should 
deduct  from  the  verdict  so  directed  the  amount  of  a  counter- 
claim arising  out  of  a  distinct  transaction  pleaded  by  defend- 
ants, or  should  permit  defendants  to  introduce  evidence  in  sup- 
port of  their  counterclaim,  and,  if  established,  then  deduct  the 
amount  thereof.  Crane  Co.  v.  Collins,  103  App.  Div.  480,  93  N. 
Y.  Supp.  174. 

2294,  n.  683.  But  where  the  motion  for  a  nonsuit  was  de- 
cided after  the  conclusion  of  the  trial,  and  was  evidenced  by 
an  order  formally  entered  at  a  time  when  there  was  no  oppor- 
tunity to  take  an  exception,  the  appellate  division  will  review 
the  judgment  as  though  a  formal  exception  had  been  inter- 
posed. Sutherland  v.  St.  Lawrence  County,  103  App.  Div.  597, 
93  N.  Y.  Supp.  958. 

2294,  n.  684.  So  where  the  strict  application  of  the  rule 
holding  parties  to  a  waiver  of  the  right  to  go  to  the  jury  where 
they  request  a  directed  verdict  and  thereafter  do  not  ask  leave 
to  go  to  the  jury,  would  work  injustice,  it  may  be  waived  or 
disregarded  by  the  appellate  court.  Rosenstein  v.  Traders'  Ins. 
Co.,  102  App.  Div.  147,  92  N.  Y.  Supp.  326. 

2295,  n.  691.  Bopp  v.  New  York  Elec.  Vehicle  Transp.  Co., 
is  reported  in  177  N.  Y.  33;  McDowell  v.  Syracuse  Land  & 
Steamboat  Co.,  44  Misc.  627,  90  N.  Y.  Supp.  148. 

2297,  n.  695.  The  failure  to  except  to  the  submission  to  the 
jury  of  the  specific  questions  requiring  a  special  verdict,  is  not 
cured  by  an  exception  to  the  direction  of  a  general  verdict 
based  thereon.  Cooper  v.  New  York,  O.  &  W.  R.  Co.,  180  N.  Y. 
12. 

2297,  n.  700.  A  motion  by  both  parties  for  the  direction  of 
a  verdict  constitutes  an  election  that  the  trial  judge  decide  any 
questions  of  fact  in  the  case.  Rosenstein  v.  Vogemann,  102 
App.  Div.  39,  92  N.  Y.  Supp.  86. 

2298,  n.  701.  Herrmann  v.  Koref,  47  Misc.  94,  93  N.  Y.  Supp. 
488. 

2298,  n.  702.  German-American  Bank  v.  Cunningham,  97 
App.  Div.  244,  89  N.  Y.  Supp.  836. 

2301,  §  1765.  As  stated  in  the  text  the  decisions  are  in  con- 
flict as  to  whether  the  appellate  division  can  review  the  ques- 
tion whether  the  evidence  was  sufficient  to  take  the  case  to  the 


APPENDIX.  4163 

jury  (1)  in  the  absence  of  a  motion  to  take  the  case  from  the 
jury  or  (2)  in  the  absence  of  an  exception  to  the  ruling  on  the 
motion  to  take  the  case  from  the  jury.  In  the  first  place,  it  is 
submitted  that  the  question  whether  there  is  evidence  sufficient 
to  make  a  case  for  the  jury  is  a  question  of  law,  and  while  ex- 
ceptions to  the  rulings  on  questions  of  law  are  not  necessary 
for  a  review  on  a  motion  for  a  new  trial  they  are  necessary, 
except  in  cases  involving  peculiar  circumstances,  to  obtain  a 
review  of  the  ruling  on  an  appeal  to  the  appellate  division.  Ac- 
cordingly, the  rule  supported  by  the  weight  of  authority  is 
that  there  must  not  only  be  a  motion  to  take  the  case  from  the 
jury  but  also  an  exception  thereto  to  enable  the  appellate  divi- 
sion on  appeal  to  review  the  question  whether  there  was  "any" 
evidence  constituting  a  cause  of  action  or  a  defense,  as  the  case 
may  be,  which  should  have  been  submitted  to  the  jury.  This 
rule  is  supported  by  the  late  cases  of  Collier  v.  Collins,  172  N. 
T.  101 ;  Perry  v.  Village  of  Potsdam,  106  App.  Div.  297,  94  N. 
Y.  Supp.  683 :  and  Muratore  v.  Pirkl,  104  App.  Div.  133,  93  N. 
Y.  Supp.  484.  Of  course,  a  motion  to  take  the  case  from  the 
jury  is  not  necessary  to  review  of  the  question  whether  there  is 
"sufficient,"  as  distinguished  from  "any,"  evidence  to  sup- 
port the  verdict  (Citizens'  Bank  v.  Rung  Furniture  Co.,  67  App. 
Div.  471,  78  N.  Y.  Supp.  604).  It  is  submitted  that  the  rule  that 
a  motion  and  exception  are  necessary  to  authorize  a  review  on 
appeal  to  determine  whether  there  is  "any"  evidence  which 
should  have  been  submitted  to  the  jury,  is  independent  of  the 
question  whether  a  motion  for  a  new  trial  is  made  or  an  appeal 
taken  from  the  order  entered  on  such  motion,  since  the  latter 
procedure  is  necessary  only  where  questions  of  fact  are  sought 
to  be  reviewed. 

2302,  n.  720a.  Instruction  to  disregard  was  held  not  to  cure 
the  error  in  Benoit  v.  New  York  Cent.  &  H.  R.  R.  Co.,  94  App. 
Div.  24,  87  X.  Y.  Supp.  951. 

2302,  n.  721.  Diamond  v.  Planet  Mills  Mfg.  Co.,  97  App. 
Div.  43,  89  N.  Y.  Supp.  635. 

2308,  n.  751.  Kinne  v.  International  R.  Co.,  100  App.  Div.  5, 
90  N.  Y.  Supp.  930. 

2324.  The  judge  may  read  and  comment  on  the  pleadings 
Eor  the  purpose  of  defining  the  issue,  and  showing  what  part  of 


•lltj-i  APPENDIX. 

the  allegations  are  admitted,  though  the  pleadings  have  not 
formally  been  put  in  evidence.  Foley  v.  Y.  M.  C.  A.,  92  N.  Y. 
Supp.  781. 

2328.  An  instruction  that  defendant's  witnesses,  being 
"sworn  officers  of  the  law,"  are  entitled  to  more  credit  than 
plaintiff,  is  erroneous.  Durst  v.  Ernst,  45  Misc.  627,  91  N.  Y. 
Supp.  13. 

2328,  n.  866.  See,  also,  Beers  v.  Metropolitan  St.  R.  Co.,  88 
App.  Div.  9,  81  N.  Y.  Supp.  785. 

2328,  n.  868.     Kapiloff  v.  Feist,  91  N.  Y.  Supp.  27. 

2331,  §  1794.  It  is  proper  to  refuse  to  charge  in  a  civil  case, 
even  where  the  complaint  incidentally  alleges  the  commission 
of  a  crime  such  as  an  assault,  that  defendant  is  presumed  inno- 
cent until  he  is  proven  guilty.    Kurz  v.  Doerr,  180  N.  Y.  88. 

2332,  The  court  should  not  charge  that  the  jury  may  con- 
sider the  fact  that  defendant  produced  no  witnesses,  in  the  ab- 
sence of  evidence  that  defendant  had  any  witnesses  which  it 
could  produce,  and  where  there  is  no  showing  that  anybody 
except  the  witnesses  examined  by  plaintiff  can  testify  upon 
the  subject.  Robinson  v.  Metropolitan  St.  R.  Co.,  103  App.  Div. 
243,  92  N.  Y.  Supp.  1010.  So  it  is  proper  to  refuse  to  charge 
that  "if  the  plaintiff  has  failed  to  call  a  witness  who  could 
throw  any  light  on  the  subject,  the  jury  may  infer  from  their 
not  calling  him  that  he  would  not  help  their  side."  Baldwin  v. 
Brooklyn  Heights  R.  Co.,  99  App.  Div.  496,  91  N.  Y.  Supp.  59. 

2333,  n.  897.     Reiss  v.  Kienle,  88  N.  Y.  Supp.  359. 

2335,  n.  916.  Frank  v.  Metropolitan  St.  R.  Co.,  91  App.  Div. 
485,  86  N.  Y.  Supp.  1018. 

2336.  Exception  to  a  refusal  to  charge  certain  requests  are 
waived  by  the  failure  to  accept  the  offer  of  the  court  to  recall 
the  jury  and  charge  the  requests  refused.  Drucklieb  v.  Uni- 
versal Tobacco  Co.,  106  App.  Div.  470,  94  N.  Y.  Supp.  777. 

2336,  n.  924.  To  same  effect,  see  Buckley  v.  Westchester 
Lighting  Co.,  93  App.  Div.  436,  87  N.  Y.  Supp.  763. 

2337,  n.  928.  Keating  v.  Mott,  92  App.  Div.  156,  86  N.  Y. 
Supp.  1041 ;  Buckley  v.  "Westchester  Lighting  Co.,  93  App.  Div. 
436,  87  N.  Y.  Supp.  763. 

2340,  n.  948.     The  judge  should  not  send  the  court  stenog- 


APPENDIX.  4165 

rapher  into  the  jury  room  to  read  to  the  jury  the  evidence  on  a 
material  question.  Otto  v.  Young,  43  Misc.  628,  88  N.  Y.  Supp. 
188. 

2349,  n.  1005.  But  see  Smith  v.  Lehigh  Valley  R.  Co.,  94 
App.  Div.  125,  87  N.  Y.  Supp.  1035. 

2357,  n.  1056.  While  the  practice  is  not  regular,  it  does  not 
make  the  judgment  void.  Dubuc  v.  Lazell,  Dalley  &  Co.,  182 
N.  Y.  482,  reversing  105  App.  Div.  533,  94  N.  Y.  Supp.  1144. 
Consent  that  the  clerk  receive  and  enter  the  verdict  does  not 
constitute  an  estoppel.  Morris  v.  Harburger,  100  App.  Div. 
357,  91  N.  Y.  Supp.  409. 

2366.  A  verdict  for  plaintiff  against  a  named  defendant  can- 
not be  amended  some  two  years  later  by  adding  the  words 
"and  in  favor  of"  other  named  defendants,  though  the  appli- 
cation is  made  to  the  particular  judge  who  sat  at  the  trial  term 
when  the  case  was  heard.  Duerr  v.  Consolidated  Gas  Co.,  104 
App.  Div.  465,  93  N.  Y.  Supp.  766. 

2367,  n.  1132.  See,  also,  McAfee  v.  Dix,  101  App.  Div.  69, 
91  N.  Y.  Supp.  464. 

2377,  n.  26.  An  oral  announcement  of  the  judge 's  views  of 
the  controversy,  taken  in  the  stenographer's  minutes  and  tran- 
scribed, without  being  entitled,  dated,  or  signed  is  insufficient 
as  a  decision.  Dobbs  v.  Brinkerhoff,  98  App.  Div.  258,  90  N.  Y. 
Supp.  480. 

2378,  n.  30.  Neither  the  entry  in  the  clerk's  minutes  nor  the 
opinion  of  the  court  can  take  the  place  of  the  formal  decision 
required  by  the  Code.  Electric  Boat  Co.  v.  Howey,  96  App. 
Div.  410,  89  N.  Y.  Supp.  210.  A  judgment  entered  without  any 
decision  having  been  filed,  being  unauthorized  by  law,  cannot 
be  amended. 

2379,  n.  31.  It  is  proper  for  a  party  to  prepare  and  submit, 
at  the  request  of  the  court,  and  without  notice  to  the  opposing 
party,  the  findings  as  signed.  The  opposing  party  may  then 
move  for  a  resettlement,  but  cannot  make  an  ex  parte  applica- 
tion for  additional  findings.  Bernheim  v.  Bloch,  45  Misc.  581, 
91  N.  Y.  Supp.  40. 

2382,  nn.  66,  68.     Officially  reported  in  90  App.  Div.  553. 

2388,  §  1847.     If  no  exception  is  filed  to  the  decision  and  no 

exceptions  were  taken  on  the  trial,  there  is  nothing  for  an  ap- 


4166  APPENDIX. 

pellate  court  to  review.  Dunleavey  v.  Dunleavey,  87  App.  Div. 
601,  84  N.  Y.  Supp.  562. 

2555,  n.  18.  The  resignation  of  a  referee  after  his  appoint- 
ment and  service  for  a  considerable  time  is  a  "refusal  to 
serve,"  within  section  1011  of.  the  Code,  so  as  to  require  the 
court  to  appoint  another  referee.  Brooklyn  Heights  R.  Co.  v. 
Brooklyn  City  R.  Co.,  105  App.  Div.  88,  95  N.  Y.  Supp.  849. 

2561,  n.  64.  See,  also,  Gibson  v.  Widman,  106  App.  Div.  388, 
94  N.  Y.  Supp.  593. 

2565,  nn.  85,  87,  89.  Prentice  v.  Huff,  98  App.  Div.  Ill,  90 
N.  Y.  Supp.  780. 

2568,  n.  109.  Gibson  v.  Widman,  106  App.  Div.  388,  94  N.  Y. 
Supp.  593. 

2583,  §  1867.  In  the  first  judicial  district,  the  appellate  di- 
vision is  authorized,  by  Laws  1905,  c.  204,  p.  422,  to  appoint 
certain  ex-judges  over  sixty-five  years  of  age  to  act  as  official 
referees  in  cases  where,  for  any  reason,  the  expense  of  the 
reference  should  not  be  borne  by  the  parties.  Such  referees 
receive  a  salary. 

2617.  A  judgment  was  reversed  in  Cohen  v.  Wittemann,  100 
App.  Div.  338,  91  N.  Y.  Supp.  493,  because  the  findings  of  fact 
and  conclusions  of  law  were  inconsistent  and  irreconcilable. 

2625,  §  1901.  In  Mercantile  Nat.  Bank  v.  Sire,  100  App.  Div. 
491,  91  N.  Y.  Supp.  419,  where  a  report  was  delivered  by  a 
referee  in  ignorance  of  a  stipulation  extending  the  defendant's 
time  to  file  a  brief,  the  case  was  sent  back  to  the  referee  for  re- 
consideration. 

2648,  n.  640.  Matter  of  Venable,  104  App.  Div.  531,  93  N.  Y. 
Supp.  1074. 

2666,  n.  97.  Iaquinto  v.  Bauer,  104  App.  Div.  56,  58,  93  N. 
Y.  Supp.  388 ;  Sivin  v.  Mutual  Match  Co.,  46  Misc.  244,  91  N.  Y. 
Supp.  771 ;  Empire  Trust  Co.  v.  Devlin,  45  Misc.  583,  90  N.  Y. 
Supp.  1066. 

2671,  n.  126.  The  recollection  of  the  trial  judge  as  to  a  col- 
loquy between  the  court  and  the  counsel  is  conclusive  on  the 
appellate  court  which  will  not  interfere  with  the  record.  Burke 
v.  Baker,  104  App.  Div.  26,  93  N.  Y.  Supp.  215. 

2685,  n.  7.  In  the  absence  of  an  exception  to  the  dismissal 
of  the  complaint  at  the  close  of  plaintiff's  evidence,  the  pro- 


APPENDIX.  4167 

priety  of  such  dismissal  cannot  be  reviewed  by  the  appellate 
division  where  the  appeal  is  from  the  judgment  only,  there 
being  no  motion  for  a  new  trial.  Muratore  v.  Pirkl,  104  App. 
Div.  133,  93  N.  Y.  Supp.  481. 

2693.  Setting  aside  verdict  as  against  the  weight  of  evi- 
dence though  no  evidence  is  introduced  for  defendant,  see 
Surkin  v.  Interborough  St.  R.  Co.,  45  Misc.  407,  90  N.  Y.  Supp. 
342. 

2693,  n.  42.  If  reasonable  men  might  differ  as  to  the  result 
that  ought  to  have  been  reached  by  the  jury,  the  verdict  should 
not  be  set  aside.  Von  Der  Born  v.  Schultz,  104  App.  Div.  94,  93 
N.  Y.  Supp.  547. 

2693,  n.  47.  See,  also,  Sclinitzler  v.  Oriental  Metal  Bed  Co., 
93  N.  Y.  Supp.  1118. 

2694,  n.  50.  Walker  v.  Newton  Falls  Paper  Co.,  99  App. 
Div.  47,  90  N.  Y.  Supp.  530. 

2695,  n.  59.  But  see  Meinrenken  v.  New  York  Cent.  &  H.  R. 
R.  Co.,  103  App.  Div.  319. 

2698,  n.  85.     Meyers  v.  Zucker,  91  N.  Y.  Supp.  358. 

2701,  n.  106.  See,  also,  Bernikow  v.  Pommerantz,  94  N.  Y. 
Supp.  487. 

2702,  nn.  116-118.  That  a  juror  disclosed  the  verdict  on  the 
way  from  the  jury  room  to  the  court  room  cannot  be  taken  ad- 
vantage of  after  the  rendition  of  the  verdict,  where  the  object- 
ing party  knew  of  it  before  the  verdict  was  rendered.  Bern- 
ikow v.  Pommerantz,  94  N.  Y.  Supp.  487. 

2705,  n.  139.  Seligman  v.  Sivin,  46  Misc.  58,  91  N.  Y.  Supp. 
395.  Especially  should  such  rule  be  rigidly  enforced  where 
five  trials  have  been  had  and  the  witnesses  were  readily  accessi- 
ble. Hagen  v.  New  York  Cent.  &  H.  R.  R.  Co.,  100  App.  Div. 
218,  91  N.  Y.  Supp.  914,  which  reverses  44  Misc.  540,  90  N.  Y. 
Supp.  125.  But  the  fact  that  the  evidence  is  not  discovered 
until  after  a  third  trial  is  not  necessarily  fatal.  Beers  v.  West 
Side  R.  Co.,  101  App.  Div.  308,  312,  91  N.  Y.  Supp.  957. 

2707,  n.  157.  Where  the  verdict  rests  on  plaintiff's  unsup- 
ported and  contradictory  evidence,  which  was  met  at  every 
point  by  witnesses  most  of  whom  were  disinterested,  a  new 
trial  should  be  granted  to  defendant  though  the  newly-discov- 


4168  APPENDIX. 

ered  evidence  is  merely  cumulative.  Schnitzler  v.  Oriental 
Metal  Bed  Co.,  93  N.  Y.  Supp.  1119. 

2708.  Where  the  verdict  for  plaintiff  is  based  on  the  evi- 
dence of  one  witness,  and  there  is  a  strong  showing  that  he 
committed  perjury,  a  new  trial  should  be  ordered.  Chapman 
v.  Delaware,  L.  &  W.  R.  Co.,  102  App.  Div.  176,  92  N.  Y.  Supp. 
304. 

2708,  n.  167.  The  Chapman  case  is  officially  reported  in  102 
App.  Div.  176. 

2708,  n.  168.  But  where  the  most  material  witness  for  plaint- 
iff on  the  subject  of  damages  makes  an  affidavit  that  her  testi- 
mony was  false,  and  her  statements  in  her  affidavit  are  corrob- 
orated by  other  affidavits,  a  new  trial  should  be  granted. 
O'Hara  v.  Brooklyn  Heights  R.  Co.,  102  App.  Div.  398,  92  N. 
Y.  Supp.  777. 

2710.  Surprise  as  to  the  decision  is  not  ground  for  a  new 
trial.  McWhirler  v.  Bowen,  103  App.  Div.  447,  92  N.  Y.  Supp. 
1039. 

2711,  mi.  189,  190.  Carlisle  v.  Barnes  is  affirmed  in  102  App. 
Div.  582,  92  N.  Y.  Supp.  924. 

2711,  n.  191.  But  this  rule  does  not  apply  where  manufac- 
tured evidence  is  introduced.  Seligman  v.  Sivin,  46  Misc.  58, 
91  N.  Y.  Supp.  395. 

2714,  n.  212.  Harvey  v.  Fargo  is  officially  reported  in  99 
App.  Div.  599.  Compare  Seligman  v.  Sivin,  46  Misc.  58,  91 
N.  Y.  Supp.  395,  where  rule  was  held  not  to  apply. 

2729,  n.  80.  So  held  where  motion  was  based  on  surprise, 
mistake,  etc.  McWhirter  v.  Bowen,  103  App.  Div.  447,  92  N.  Y. 
Supp.  1039. 

2733,  n.  116.  Hagen  v.  New  York  Cent.  &  H.  R.  R.  Co.,  44 
Misc.  540,  90  N.  Y.  Supp.  125,  is  reversed  in  100  App.  Div.  218, 
91  N.  Y.  Supp.  914,  where  it  is  said  that  while  the  credibility 
of  witnesses  is  for  the  jury,  yet  the  reputation  and  character  of 
the  newly-discovered  witnesses  should  not  be  disregarded  in 
determining  the  motion. 

2743.  On  setting  aside  a  verdict  because  of  a  charge  of 
perjury,  the  costs  of  the  motion  and  the  reference  incidental 
thereto  should  abide  the  event.  Chapman  v.  Delaware,  L.  &  W. 
R,  Co.,  102  App.  Div.  176,  180,  92  N.  Y.  Supp.  304.    On  granting 


APPENDIX.  4169 

a  new  trial  because  of  surprise,  an  extra  allowance  should  not 
be  awarded.  Simpson  v.  Hefter,  46  Misc.  67,  91  N.  Y.  Supp. 
326. 

2743,  n.  179.  Larsen  v.  United  States  Mortg.  &  Trust  Co., 
104  App.  Div.  76,  82,  93  N.  Y.  Supp.  610. 

2745,  §  1960.  An  order  granting  a  new  trial  will  not  be  set 
aside  because  a  wrong  reason  was  given  for  granting  it.  Ross 
v.  Metropolitan  St.  R.  Co.,  104  App.  Div.  378,  382,  93  N.  Y. 
Supp.  679. 

2756.  Judgment  of  dismissal,  in  an  action  tried  without  a 
jury,  as  on  the  merits,  where  dismissal  was  because  action  was 
prematurely  brought,  see  Ruegamer  v.  Cieslinskie,  93  N.  Y. 
Supp.  599. 

2756,  n.  34.  Weeks  v.  Van  Ness,  104  App.  Div.  7,  93  N.  Y. 
Supp.  337. 

2763,  §  1969.  A  prayer  for  such  further  judgment  as  may 
be  necessary  may  sustain  a  personal  judgment  in  an  action  to 
foreclose  a  mechanic's  lien.  Schenectady  Contracting  Co.  v. 
Schenectady  R.  Co.,  106  App.  Div.  336,  94  N.  Y.  Supp.  401. 

2763,  n.  85.  Hasbrouck  v.  New  Paltz,  H.  &  P.  Traction  Co., 
is  officially  reported  in  98  App.  Div.  563. 

2763,  n.  87.  See,  also,  Mathot  v.  Triebel,  102  App.  Div.  426, 
92  N.  Y  Supp.  512. 

2764,  n.  90.  Mathot  v.  Triebel,  102  App.  Div.  426,  92  N.  Y. 
Supp.  512. 

2764,  n.  95.  Where  the  complaint  alleges  a  contract  but  the 
contract  is  void  under  the  statute  of  frauds,  a  recovery  on  a 
quantum  meruit  is  not  allowable  where  the  question  as  to  the 
value  of  the  services  is  not  litigated  on  the  trial  and  the  com- 
plaint which  contains  no  allegations  on  which  such  a  recovery 
can  be  founded  is  not  amended.  Banta  v.  Banta,  103  App.  Div. 
172,  93  N.  Y.  Supp.  393.  Where  plaintiff  alleged  that  on  or 
about  January  1,  1900,  defendant  hired  him  to  work  for  it  for 
the  period  of  one  year,  beginning  January,  1900,  judgment  can- 
not be  recovered  on  evidence  of  employment  antecedent  to  that 
year  and  a  holding  over  for  another  year.  Treffinger  v.  M. 
Groh's  Sons,  100  App.  Div.  433,  91  N.  Y.  Supp.  837. 

2765.  Where  plaintiff  sues  for  an  injunction  and  for  past 
damages,  and  the  case  is  tried  at  special  term,  a  judgment  for 


4170  APPENDIX. 

damages  only  cannot  be  rendered,  where  defendant  set  up  in 
his  answer  that  there  was  a  full  and  adequate  remedy  at  law. 
Sadlier  v.  City  of  N.  Y.,  104  App.  Div.  82,  93  N.  Y.  Supp.  579. 
To  same  effect,  see  Western  Union  Tel.  Co.  v.  Electric  Light 
&  Power  Co.,  178  N.  Y.  325,  329.  And  the  fact  that  the  defend- 
ant noticed  the  case  for  trial  at  the  special  term  under  its  stipu- 
lation to  that  effect  does  not  alter  the  rule.  Sadlier  v.  City  of 
X.  Y.,  104  App.  Div.  82,  93  N.  Y.  Supp.  579. 

2765,  n.  102.  There  is  a  considerable  conflict  of  opinion 
(1)  as  to  whether  a  complaint  which  sets  up  an  equitable  cause 
of  action  with  a  demand  solely  for  equitable  relief  is  demur- 
rable for  failure  to  state  a  cause  of  action  where  a  legal  cause 
of  action  is  also  contained  in  the  same  facts  alleged  in  the  com- 
plaint (see  vol.  1,  pp.  1000,  1001),  and  (2)  as  to  whether,  where 
a  complaint  seeks  both  equitable  and  legal  relief,  and  it  appears 
on  the  trial  at  special  term  that  only  legal  relief  can  be  granted, 
the  complaint  should  be  dismissed  or  the  cause  sent  to  a  jury  for 
trial,  or  the  special  term  should  retain  the  case  and  grant  the 
legal  relief.  In  the  case  of  Tucker  v.  Edison  Elec.  Illuminating 
Co.,  100  App.  Div.  407,  91  N.  Y.  Supp.  439,  the  action  was  to 
enjoin  a  nuisance  and  to  recover  damages.  It  appeared  before 
trial,  but  not  on  the  motion  to  send  the  case  to  the  trial  term 
calendar  which  was  denied,  that  pending  the  action  the  nuis- 
ance had  been  so  far  abated  that  an  injunction  should  not  be 
issued.  It  was  held  that  the  special  term  had  power  to  assess 
the  damages  and  that  a  judgment  for  legal  relief  was  proper. 
The  case  of  McNulty  v.  Mt.  Morris  Electric  Light  Co.,  172  N. 
Y.  410,  was  distinguished  on  the  ground  that  in  that  case  the 
fact  that  plaintiff  was  not  entitled  to  injunctive  relief  because 
of  events  occurring  after  the  commencement  of  the  action  was 
shown  at  the  time  the  motion  was  made  to  send  the  case  to  the 
trial  term  for  a  trial  by  jury.  McLaughlin  J.,  wrote  a  dissent- 
ing opinion  in  which  Van  Brunt,  P.  J.,  concurred.  In  the  dis- 
senting opinion  will  be  found  the  cases  which  support  the  con- 
trary rule. 

2765,  n.  105.  But  where  a  complaint  contains  a  statement 
of  acts  constituting  a  cause  of  action  on  a  contract,  which  is  sus- 
tained by  proof,  a  recovery  is  authorized  though  the  complaint 


APPENDIX.  4171 

also  contains  allegations  of  a  tort.  Booth  v.  Englert,  105  App. 
Div.  284,  94  N.  Y.  Supp.  700. 

2780,  §  1977.  The  court  does  not  lose  jurisdiction  of  the 
motion  for  final  judgment  because  the  argument  was  brought 
on  during  one  term  and  a  reargument  was  heard  by  the  judge 
after  the  commencement  of  his  second  term  of  office.  Jewett 
v.  Schmidt,  45  Misc.  471,  92  N.  Y.  Supp.  737. 

2782,  n.  199.  Where  a  party  dies  after  the  entry  of  an  inter- 
locutory judgment,  the  final  judgment  is  to  be  entered  in  the 
names  of  the  original  parties.  Jewett  v.  Schmidt,  45  Misc.  471, 
92  N.  Y.  Supp.  737. 

2785,  §  1984.  Where,  after  the  reargument  of  a  motion  for 
final  judgment  after  the  entry  of  an  interlocutory  judgment,  a 
child  is  born  whose  interests  are  such  that  he  would  be  a  neces- 
sary party  to  the  action,  the  court  may  direct  the  entry  of  judg- 
ment nunc  pro  tunc  as  of  the  date  of  the  motion  for  judgment, 
where  prejudice  would  otherwise  result  to  the  successful  party 
from  the  delay  in  the  decision  of  the  case.  Jewett  v.  Schmidt, 
45  Misc.  471,  92  N.  Y.  Supp.  737. 

2790,  §  1994.  A  judgment  of  foreclosure  of  a  mortgage  can- 
not be  docketed  until  a  deficiency  has  been  ascertained.  French 
v.  French,  107  App.  Div.  107,  94  N.  Y.  Supp.  1028. 

2796.  A  personal  decree  for  the  deficiency,  in  a  mortgage 
foreclosure  suit,  after  the  application  of  the  proceeds  of  sale 
to  pay  the  mortgage  debt,  does  not  have  the  force  and  effect  of 
a  judgment  at  law,  and  become  a  lien  upon  the  real  property 
of  the  person  against  whom  it  is  taken,  until  the  excess  of  the 
mortgage  debt  over  the  proceeds  of  the  sale  has  been  ascer- 
tained, and  a  subsequent  judgment  at  law  has  been  docketed. 
French  v.  French,  107  App.  Div.  107,  94  N.  Y.  Supp.  1026. 

2797,  §  2001.  The  lien  on  land  taken  by  condemnation  pro- 
ceedings attaches  to  the  award  with  all  the  rights  and  liabilities 
which  the  judgment  creditor  would  have,  and  be  subject  to,  as 
to  the  land.  Van  Loan  v.  City  of  X.  Y  105  App.  Div.  572,  94 
X.  Y.  Supp.  221. 

2802,  n.  314.  Rule  applied  where  right  to  sue  for  award  was 
suspended  by  statute  for  four  months.  Van  Loan  v.  City  of  N. 
Y.,  94  N.  Y.  Supp.  221. 

2817,  n.  405.     Where  a  judgment  is  void  because  of  the  rela- 


4172  APPENDIX. 

tionship  of  the  trial  judge  to  a  party,  it  may  be  vacated  on  mo- 
tion. Whether  snch  a  judgment  is  reversible  on  appeal  or  the 
appeal  will  be  dismissed,  quere.  Elmira  Realty  Co.  v.  Gibson, 
103  App.  Div.  140,  92  N.  Y.  Supp.  913. 

2819,  n.  415.  That  rule  as  to  collateral  attack  does  not  apply 
to  an  action  on  a  "foreign"  judgment,  see  Prichard  v.  Sigafus, 
103  App.  Div.  535,  93  N.  Y.  Supp.  152. 

2820,  n.  419.  Carlisle  v.  Barnes  is  affirmed  in  102  App.  Div. 
582,  92  N.  Y.  Supp.  924. 

2820,  n.  422.  See,  also,  Reich  v.  Cochran,  105  App.  Div.  542, 
94  N.  Y.  Supp.  404. 

2825,  n.  455.  But  see,  as  contra,  Riley  v.  Ryan,  45  Misc.  151, 
91  N.  Y.  Supp.  952. 

2827,  n.  466.  Riley  v.  Ryan,  45  Misc.  151,  91  N.  Y.  Supp. 
952. 

2835,  n.  506.  Followed  in  Howe  v.  Noyes,  47  Misc.  338,  93 
N.  Y.  Supp.  476. 

2836.  A  grantee  of  real  estate  formerly  owned  by  the  bank^ 
rupt  and  on  which  the  judgment  is  a  lien  may  move  to  cancel 
the  judgment  against  the  bankrupt,  since  the  right  to  move  is 
not  personal  to  the  bankrupt.  Graber  v.  Gault,  103  App.  Div. 
511,  93  N.  Y.  Supp.  76. 

2836,  n.  510a.  The  burden  rests  on  the  moving  party, 
whether  he  be  the  bankrupt  or  one  who  has  succeeded  to  the 
bankrupt's  right,  to  establish  the  necessary  facts  to  show  that 
the  discharge  in  bankruptcy  operated  on  the  debt  represented 
by  the  judgment.  He  must  show  that  the  debt  was  scheduled 
or  that  the  creditor  had  actual  notice  or  knowledge  of  the  pro- 
ceeding. Graber  v.  Gault,  103  App.  Div.  411,  93  N.  Y.  Supp. 
76 ;  Schiller  v.  Weinstein,  47  Misc.  622,  94  N.  Y.  Supp.  763. 

2836,  n.  511.     Dodge  v.  Kaufman,  91  N.  Y.  Supp.  727. 

2837,  §  2034.  Inasmuch  as  costs  belong  to  the"  client,  and 
not  to  the  attorney,  the  client  may  satisfy  a  judgment  awarding 
him  costs.  Earley  v.  Whitney,  106  App.  Div.  399,  94  N.  Y. 
Supp.  728. 

2842,  n.  531.  This  Code  provision  does  not  apply  to  an  ac- 
tion on  a  final  order  made  in  a  special  proceeding.  Fenlon  v. 
Paillard,  46  Misc.  151,  93  N.  Y.  Supp.  1101. 

2842,  n.  534.  Fenlon  v.  Paillard,  46  Misc.  151,  93  N.  Y.  Supp. 
1101. 


APPENDIX.  4173 

2847,  n.  4.  A  judgment  by  default  is  of  no  effect  against 
•'Samuel  Durst"  where  summons  was  against  "Samuel  Dust." 
Durst  v.  Ernst,  45  Misc.  627,  91  N.  Y.  Supp.  13. 

2853,  n.  55.  Mathot  v.  Triebel,  102  App.  Div.  426,  92  N.  Y. 
Supp.  512. 

2862,  n.  94.  "Where,  in  an  action  for  injury  to  property,  de- 
fendant makes  default,  the  damages  under  Code  Civ.  Proc. 
§  1215,  can  only  be  ascertained  by  a  writ  of  inquiry.  Fullerton 
v.  Young,  46  Misc.  292,  94  N.  Y.  Supp.  511.  A  conversion  to 
defendant's  own  use  of  money  collected  by  him  as  agent  is  an 
"injury  to  property,"  within  Code  Civ.  Proc.  §  1215,  requiring 
damages  on  default  in  such  a  case  to  be  ascertained  by  writ  of 
inquiry.     Id. 

2867,  §  2054.  In  assessing  the  damages  the  allegations  of  the 
complaint  are  required  to  be  treated  as  true  the  same  as  if  no 
answer  had  been  interposed.  The  damages  are  assessable  as  if 
the  defeated  party  had  made  default  in  pleading.  City  Trust, 
Safe  Deposit  &  Surety  Co.  v.  American  Brewing  Co.,  181  N.  F. 
285. 

2868,  §  2055.  The  denial  of  a  "motion"  to  open  a  default 
and  to  be  permitted  to  defend  does  not  preclude  an  "action"  to 
set  aside  the  judgment.  Everett  v.  Everett,  180  N.  Y.  452,  46.1. 
Where  a  party  is  actually  represented  by  counsel  in  court,  fully 
prepared  to  try  the  cause,  and  such  counsel  refuses  to  proceed 
for  the  sole  reason  that  he  thinks  the  justice  presiding  may  de- 
cide against  him,  the  judgment  thus  rendered  cannot  be  vacated 
as  though  taken  by  default,  and  no  reason  can  be  suggested  for 
disturbing  it  which  could  not  be  urged  with  equal  force  to  va- 
cate a  judgment  alleged  to  have  resulted  from  the  incompetence 
of  the  attorney  conducting  the  trial.  Sutter  v.  City  of  N.  Y.. 
106  App.  Div.  129,  94  N.  Y.  Supp.  515. 

2869,  §  2057.  The  fact  that  a  defendant  not  properly  served 
with  summons  knows  of  the  action  and  the  taking  of  a  default 
judgment  therein,  but  takes  no  steps  to  prevent  such  judgment, 
does  not  preclude  his  right  to  move  to  have  the  default  judg- 
ment set  aside.     O'Connell  v.  Gallagher,  93  N.  Y.  Supp.  643. 

2870,  n.  150.  Where  defendant  made  no  application  to  post- 
pone the  trial  because  of  the  illness  of  one  of  his  attorneys,  but 


4174  APPENDIX. 

instead  deliberately  abandoned  the  case  and  left  the  county, 
and  he  offers  no  real  excuse  for  his  disregard  of  the  case  and 
of  the  court,  the  default  will  not  be  opened.  Brown  v.  Huber, 
103  App.  Div.  134,  92  N.  Y.  Supp.  940. 

2875,  n.  190.  See,  also,  Cohen  v.  Meryash,  93  N.  Y.  Supp. 
529. 

2875,  §  2065.  After  an  inquest,  the  default  should  not  be 
opened  on  payment  merely  of  motion  costs,  but  there  should  be 
added  a  trial  fee  and  plaintiff's  disbursements.  Siegel  v. 
Frankel,  93  N.  Y.  Supp.  533. 

2901,  §  2077.  Costs  cannot  be  awarded  in  a  proceeding  to 
punish  for  criminal  contempt,  since  there  is  no  statutory  au- 
thority therefor.  People  ex  rel.  Stearns  v.  Marr,  181  N.  Y.  463, 
471. 

2906,  n.  53.  It  follows  that  an  order  for  dismissal  of  the  com- 
plaint cannot  be  made  conditional  on  a  waiver  of  the  costs  of 
the  action  by  defendant,  unless  the  plaintiff  should  appeal,  in 
which  case  defendant  was  to  have  his  costs.  Thiel  v.  Schon- 
zeit,  104  App.  Div.  151,  93  N.  Y.  Supp.  383. 

2927,  n.  202.  If  the  action  is  unnecessary,  defendant  is  prop- 
erly awarded  costs.  Millard  v.  Breckwoldt,  100  App.  Div.  44, 
48,  90  N.  Y.  Supp.  890. 

2933,  §  2096.  While  the  statute  authorizes  the  imposition  of 
costs  in  a  proceeding  to  punish  for  a  civil  contempt,  there  is  no 
such  authority  in  a  case  for  criminal  contempt,  since  the  latter 
is  a  criminal  proceeding  and  not  a  special  proceeding  such  as 
defined  by  the  Code.  People  ex  rel.  Stearns  v.  Marr,  181  N.  Y. 
463,  471. 

2934,  n.  249.  See,  also,  In  re  Rapid  Transit  Com'rs,  103  App. 
Div.  530,  93  N.  Y.  Supp.  262. 

2936.  Costs  should  not  be  imposed  on  a  moving  party  whose 
motion  is  denied,  where  the  motion  is  not  opposed  by  the  coun- 
sel who  appear  in  behalf  of  the  party  against  whom  the  applica- 
tion is  made.     In  re  Collins'  Estate,  93  N.  Y.  Supp.  342. 

2942.  In  an  action  to  foreclose  several  mechanics'  liens  filed 
by  different  persons,  it  is  improper  to  allow  the  owner  separate 
bills  of  costs  against  unsuccessful  lienors  who  filed  separate 
liens,  since  only  one  bill  of  costs  can  be  allowed  to  one  party  in 


APPENDIX.  4175 

such  a  ease.     Woolf  v.  Schaefer,  103  App.  Div.  567,  573,  93  N. 
Y.  Supp.  184. 

2997,  §  2158.  An  order  affirming  the  report  of  a  referee  and 
directing  further  proceedings  by  the  receiver  in  the  action, 
being  an  order  made  on  a  motion  in  the  action  cannot  award  a 
sum  to  the  attorney  for  the  receiver  as  an  extra  allowance  in 
lieu  of  costs.  Adams  v.  Elwood,  104  App.  Div.  138,  93  X.  Y. 
Supp.  327. 

3001,  n.  743.  Propriety  of  allowances  in  action  to  construe 
will,  see  Rothschild  v.  Goldenberg,  103  App.  Div.  235,  242. 

3003.  Where  the  answer  admits  the  right  of  plaintiff  to  re- 
cover the  amount  demanded  in  the  complaint,  but  sets  up  a 
counterclaim  under  which  the  defendant  recovers  less  than 
the  amount  admitted  to  be  due  plaintiff,  the  fact  that  the  case 
is  a  difficult  and  extraordinary  one  does  not  authorize  the 
granting  of  an  additional  allowance  to  plaintiff,  where  the  diffi- 
culty arose  in  regard  to  the  counterclaim  as  to  which  defendant 
prevailed.  Huber  v.  Clark,  105  App.  Div.  127,  93  N.  Y.  Supp. 
1090. 

3003,  n.  758.  Leonard  v.  Union  R.  Co.,  98  App.  Div.  204,  90 
N.  Y.  Supp.  574. 

3005,  n.  782.  In  mortgage  foreclosure  cases,  it  is  not  neces- 
sary that  a  defense  be  interposed  to  authorize  the  extra  allow- 
ance. Badger  v.  Johnston,  106  App.  Div.  237,  94  N.  Y.  Supp. 
421. 

3013,  n.  837.     Kitching  v.  Brown  is  reported  in  180  N.  Y.  414. 

3022,  n.  919.  But  where  the  judgment  as  entered  contains  a 
vacant  space  wherein  the  costs  can  be  inserted,  it  is  within  the 
power  of  the  court  to  amend  the  judgment  by  permitting,  in 
addition  to  the  regular  costs,  an  extra  allowance.  Bowers  v. 
Male,  102  App.  Div.  609,  92  N.  Y.  Supp.  183. 

3023,  nn.  927-929.  In  Badger  v.  Johnston,  106  App.  Div.  257. 
94  N.  Y.  Supp.  421,  a  notice  in  a  mortgage  foreclosure  suit,  on 
default,  for  the  relief  demanded  in  the  complaint,  was  held 
broad  enough  to  authorize  an  extra  allowance,  without  further 
notice. 

3024,  In  the  absence  of  objection  or  exception  at  the  time 
of  the  allowance,  the  appellate  division  will  not,  it  seems,  inter- 


4176  APPENDIX. 

fere  therewith,  especially  where  it  is  supported  by  equitable 
reasons.     Schiff  v.  Tamor,  93  N.  Y.  Supp.  853. 

3025,  n.  941.     Kitching  v.  Brown  is  reported  in  180  N.  Y.  414. 

3034,  n.  999.  Talcott  v.  Wabash  B.  Co.,  is  officially  reported 
in  99  App.  Div.  239. 

3036,  n.  1020.  Crotty  v.  De  Dion-Bouton  Motorette  Co.,  102 
App.  Div.  405,  92  N.  Y.  Supp.  619. 

3047,  §  2193.  It  is  well  settled  that  all  the  parties  to  an  ac- 
tion (and  the  same  rule  applies  to  a  special  proceeding)  are 
liable  for  the  fees  of  a  referee,  even  including  those  parties,  if 
any,  who  objected  to  the  appointment  of  a  referee.  And  the 
same  rule  applies  to  the  fees  of  an  unofficial  stenographer  em- 
ployed with  the  consent  and  acquiescence  of  the  parties. 

3048,  n.  11.  So  is  a  stipulation  that  the  referee  "may  charge 
and  be  paid  a  reasonable  compensation  for  the  services  per- 
formed." New  York  Mut.  Sav.  &  L.  Ass'n  v.  Westchester  Fire 
Ins.  Co.,  98  App.  Div.  285,  90  N.  Y.  Supp.  710. 

3071,  n.  81.  See,  also,  Schiller  v.  Weinstein,  94  N.  Y.  Supp. 
764. 

3083.  Where  it  appears,  on  an  application  for  leave  to  issue 
execution  on  a  judgment  against  an  administrator,  that  a  fund 
held  by  the  administrator  consists  of  a  part  of  the  proceeds  of 
a  judgment  against  the  government  in  favor  of  the  decedent, 
and  the  affidavit  of  the  administrator  expressly  avers  that  there 
is  not  property  in  his  hands  applicable  to  the  judgment,  the 
court  should  direct  an  accounting.  In  re  Warren,  105  App.  Div. 
582,  94  N.  Y.  Supp.  286. 

3138,  n.  545.  Higgins  v.  Downs,  101  App.  Div.  119,  91  N. 
Y.  Supp.  937. 

3151,  n.  657.  As  a  defense,  defendant  may  prove  that  the 
judgment  creditor  assigned  the  judgment  on  which  the  execu- 
tion was  based,  before  the  issuance  of  the  execution.  Matter  of 
Mawson,  182  N.  Y.  234. 

3192,  n.  936a.  The  Durst  case  is  officially  reported  in  45 
Misc.  627. 

3193,  n.  945.  An  execution  creditor  who  gives  no  specific  in- 
structions to  the  officer  as  to  the  levy  to  be  made  is  not  liable 
for  the  act  of  the  officer  in  levying  on  the  property  of  a  third 


APPENDIX.  4177 

person.     Milella  v.  Simpson,  47  Misc.  690,  94  N.  Y.  Supp.  464 ; 
Siersema  v.  Meyer,  38  Misc.  358,  77  N.  Y.  Supp.  901. 

3197,  n.  5.  Davids  v.  Brooklyn  Heights  R.  Co.,  is  reversed  in 
104  App.  Div.  23,  93  N.  Y.  Supp.  285,  on  this  point. 

3199,  n.  12.  But  there  must  be  proof  that  the  defendant 
knew  the  allegations  to  be  false.  Booth  v.  Englert,  105  App. 
Div.  284,  94  N.  Y.  Supp.  700. 

3200,  §  2303.  On  a  motion  to  set  aside  a  body  execution  on 
the  ground  that  the  action  is  not  one  in  which  such  an  execution 
can  issue,  the  moving  party  may  show  the  theory  on  which  the 
action  was  tried  and  decided.  Booth  v.  Englert,  105  App.  Div. 
284,  94  N.  Y.  Supp.  700. 

3216.  Judicial  sales  are  not  within  the  statute  forbidding 
the  sale  of  lands  in  the  possession  of  a  third  person  who  claims 
under  an  adverse  title.    Da  Garmo  v.  Phelps,  176  N.  Y.  455. 

3230,  n.  103.  A  judicial  sale  cannot  be  set  aside,  "as  a  mat- 
ter of  right,"  because  the  sale  was  in  mass.  Vingut  v.  Ketcham, 
102  App.  Div.  403,  92  N.  Y.  Supp.  605. 

3232.  The  order  cannot  substantially  amend  the  judgment, 
under  which  the  sale  was  made.  Vingut  v.  Ketcham,  102  App. 
Div.  403,  92  N.  Y.  Supp.  605. 

3232,  n.  117.  Terms  may  be  imposed  where  the  setting  aside 
of  the  sale  rests  in  the  discretion  of  the  court.  Vingut  v. 
Ketcham,  102  App.  Div.  403,  92  N.  Y.  Supp.  605. 

3239.  Where  the  purchaser  seeks  relief  from  his  purchase 
by  motion,  he  must  offer  evidence  in  justification  of  his  refusal 
to  perform,  unless  the  defect  is  patent  in  the  record.  Title 
Guarantee  &  Trust  Co.  v.  Fallon,  101  App.  Div.  187,  91  N.  Y. 
Supp.  497. 

3258,  n.  27.  The  assignee  of  the  judgment  may  institute  the 
proceeding  in  the  name  of  the  assignor.  Maigille  v.  Leonard, 
102  App.  Div.  367,  92  N.  Y.  Supp.  656. 

3300,  n.  331.  Thompson  v.  Sage,  47  Misc.  357,  94  N.  Y.  Supp. 
31. 

3333,  n.  546.  Thompson  v.  Sage,  47  Misc.  357,  94  N.  Y.  Supp. 
31. 

3340,  n.  604a.  Contra,  Field  v.  White,  102  App.  Div.  365,  92 
N.  Y.  Supp.  848. 

N.  Y.  Prac— 262. 


41 7S  APPENDIX. 

3350,  n.  671.  A  receiver  should  not  be  appointed  where  the 
proof  shows  that  the  judgment  debtor  has  no  property  applica- 
ble to  the  payment  of  the  judgment,  and  where  it  may  result 
in  harassing  the  debtor  without  any  benefit  accruing  to  the  pe- 
titioner. Matter  of  Stafford,  105  App.  Div.  46,  94  N.  Y.  Supp. 
194. 

3365.  A  receiver  obtains  no  title  or  interest  in  the  debtor's 
right  of  possession  of  premises  sold  under  execution,  since  until 
the  sheriff's  deed  is  delivered,  the  debtor's  right  to  possession 
is  in  the  nature  of  an  exemption.  Steenberge  v.  Low,  46  Misc. 
285,  289,  92  N.  Y.  Supp.  518.  An  award  in  condemnation  pro- 
ceedings takes  the  place  of  the  land,  so  as  to  remain  subject  to 
the  judgment  lien  on  the  land  and  payable  to  the  receiver.  Van 
Loan  v.  City  of  N.  Y.,  94  N.  Y.  Supp.  221,  affirming  45  Misc. 
482,  92  N.  Y.  Supp.  734. 

3367.  The  receiver  has  not  a  sufficient  title  to  sue  for  parti- 
tion of  real  property.  Steenberge  v.  Low,  46  Misc.  285,  92  N. 
Y.  Supp.  518.  The  right  of  the  receiver  to  recover  an  award 
for  lands  of  the  judgment  debtor  taken  by  condemnation  pro- 
ceedings is  not  limited  to  the  ten  years  during  which  the  judg- 
ment is  a  lien,  but  exists  for  the  twenty  years  during  which  the 
judgment  is  in  force.  Van  Loan  v.  City  of  N.  Y.,  45  Misc.  482, 
92  N.  Y.  Supp.  734;  affirmed,  without  ruling  on  this  point,  in 
94  N.  Y.  Supp.  221. 

3367,  n.  780.  See,  also,  Van  Loan  v.  City  of  N.  Y.,  105  App. 
Div.  572,  94  N.  Y.  Supp.  221. 

3368,  n.  788.  Ten  days'  notice  of  the  sale  must  be  given. 
Jtawolle  v.  Kalbfleisch,  47  Misc.  364,  94  N.  Y.  Supp.  16. 

-3368,  n.  790.  Gross  inadequacy  of  price  is  sufficient  ground 
for  setting  aside  the  receiver's  sale.  Rawolle  v.  Kalbfleisch,  47 
Misc.  364,  94  N.  Y.  Supp.  16. 

3390,  n.  40.  But  where,  owing  to  the  nonresidence  of  the  de- 
fendant debtors,  and  to  their  lack  of  property  other  than  the 
trust  estate,  the  plaintiffs  are  without  a  remedy  at  law,  and 
cannot  comply  with  the  usual  conditions  precedent  to  the  com- 
mencement of  a  suit  in  equity  to  reach  equitable  assets  not 
liable  to  be  levied  on  by  execution,  the  recovery  of  a  judgment 
and  the  return  of  an  execution  unsatisfied  are  not  conditions 
precedent.    Bateman  v.  Hunt,  46  Misc.  346,  94  N.  Y.  Supp.  861. 


APPENDIX.  4179 

3391,  n.  48.  See,  also,  Bateman  v.  Hunt,  46  Misc.  346,  94  N. 
Y.  Supp.  861. 

3417,  n.  216.  See,  also,  Wahlheimer  v.  Truslow,  106  App. 
Div.  73,  94  N.  Y.  Supp.  137. 

3418,  n.  217.  But  it  is  not  necessary  to  file  a  lis  pendens  to 
create  a  lien  though  the  judgment  debtor  is  discharged  in  bank- 
ruptcy after  the  commencement  of  the  action,  where  no  trustee 
in  bankruptcy  has  been  appointed.  "Wahlheimer  v.  Truslow,  94 
N.  Y.  Supp.  137. 

3417,  n.  222.  Wahlheimer  v.  Truslow,  106  App.  Div.  73,  94 
N.  Y.  Supp.  137. 

3420,  n.  230.  Wahlheimer  v.  Truslow,  106  App.  Div.  73,  94 
X.  Y.  Supp.  137. 

3428.  Where  there  is  only  one  plaintiff  and  his  claim  can  be 
satisfied  by  making  the  judgment  applicable  to  a  particular  sum 
of  money  sufficient  to  satisfy  it,  it  is  not  necessary  that  all  the 
fraudulent  transfers  of  personal  property  be  set  aside.  Fox  v. 
Erbe,  100  App.  Div.  343,  348,  91  N.  Y.  Supp.  832. 

3429,  n.  292.  Where  no  accounting  is  necessary  in  a  suit  by 
one  creditor  to  set  aside  a  fraudulent  assignment  by  the  debtor 
of  all  his  property,  a  money  judgment  is  proper.  Wahlheimer 
v.  Truslow,  106  App.  Div.  73,  94  N.  Y.  Supp.  137. 


TABLE  OF  CASES. 


[REFEBENCES   ABE   TO   PAGES.] 


A. 
-,   Matter  of,   251,    254. 


Aaron  v.   Foster,   2908. 

Abbe  v.  Clark,  957. 

Abbett  v.   Biohm,  2819. 

Abbey  v.  Wheeler,   1000,    3018,   3023, 

3605,  3610,  3625,  3946. 
Abbot  v.   New  York,  L.   E.   &  W.   R. 

Co.,   3651. 
Abbott  v.  Blossom,  28. 
v.  Corbin,    2665. 
v.  Curran,  718. 
v.  Hockenberger,   4021. 
v.  Jewett,  797. 
v.  Johnstown,  G.  &  K.  Horse  R. 

Co.,  2921. 
v.  Meinken,   1029,   1038. 
v.  New    York   Cent.    &   H.    R.   R. 

Co.,  32,   728,   832. 
v.  Smith,    805,    1898. 
Abbott-Downing  Co.  v.  Faber,   1798. 
A.  B.  Cleaveland  Co.  v.  A.  C.  Nellis 

Co.,  2220. 
Abeel   v.    Anderson,    3115. 
v.  Conhyser,  804. 
v.  Wolcott,   2866. 
Abel  v.  Bischoff,  4153. 
Abell    v.    Bradner,    1890,    1896,    1898, 
3025. 
v.  New  York,  L.  B.  &  W.  R.  Co., 
15S8,   1589. 
Abels     v.     Westervelt,     1483,     3091, 

3093,   3094,  3188,   3189. 
Abendroth  v.    Durant,    3968. 
Abenheim  v.  Samuels,  2235,  2267. 
Abernathy  v.   Abernathy,   2916. 
Aborn  v.   Waite,   1038,    1042. 
Abrahams  v.   Bensen,    1932,   1963. 

v.  Mitchell,   780. 
Abram    French    Co.     v.    Marx.     957, 
2869. 
v.  Shapiro,   1052. 
Abrams  v.   Lavine,   1435. 

v.  Rhoner,    462. 
Accessory   Transit   Co.   v.    Garrison, 

2599. 
Accetta  v.  Zupa,  2268. 
Acer   v.   Hotchkiss,    43,    984. 
Acers    v.    Scheurer,    1669. 
Ackart  v.  Lansing,   2343. 
Acker  v.   Acker,   450,    526,   528,   2882, 
2884. 
v.  Hautemann,  1337. 
v.  Jackson,    1452. 
v.  Ledyard,   572,   2015. 


Acker  v.  Leland,  349,  352,  1952,  1960, 
2139,   2150,   2163,    2164. 

v.  Saynisch,    1524,    1525. 

v.  White,   3106. 
Ackerly  &  Gerard  Co.  v.  Partz,  3289. 
Ackerman  v.  Ackerman,  301,  3065. 

v.  Delude,  360,  1934,  1954,  2922. 

v.  Third  Ave.  R.  Co.,  2307,   2369. 

v.  Wagener,   287. 
Ackerson   v.    Board  Sup'rs   of  Niag- 
ara County,  474. 
Ackley  v.  Ackley,   2950. 

v.  Tarbox,  797,  3939. 
Ackroyd  v.  Ackroyd,   3783. 

v.  Newton,   2941. 
Adami  v.   Backer,   3236. 
Adams,  Matter  of,  1734. 
Adams  v.  Arkenburgh,  3009,  3017. 

v.  Ash,  183,  2811,   2813,  2830. 

v.  Ball,    1565. 

v.  Bissell,  63. 

v.  Bowe,   3118,   3120. 

v.  Bush,    116,    643,    2732. 

v.  Cavanaugh,   1781,   1810. 

v.  City  of  Utica,  2565. 

v.  Elwood,  2594,  4136,   4175. 

v.  Fassett,  473,  475,  504. 

v.  Fox,   292,  300,   3732,  3785. 

V.Godfrey,    1293. 

v.  Greenwich  Ins.  Co.,  2254,  2255. 

v.  Grey,  1593. 

v.  Holley,    828. 

v.  McPartlin,    50,    1074. 

v.  Mills,   549. 

v.  Morgan,  2055. 

v.  Nellis,   2101. 

v.  Niagara    Cycle    Fittings    Co., 
303. 

v.  Oakes,   3651. 

v.  Olin,    492,    497,    526,    2650. 

v.  Orange     County     Bank,     522, 
524. 

v.  Perkins,   3953. 

v.  Roscoe     Lumber     Co.,      2298, 
3871. 

v.  Sherrill,  852,  853. 

v.  Slingerland,      483,      957,      998, 
4107. 

v.  Speelman,    1466. 

v.  Stevens,  1005. 

v.  Stillman,  259. 

v.  Sullivan,   3017. 

v.  Tator,  2889. 

v.  Ward,   2934,   2988. 

v.  Welsh,   3107,   3334. 
Adee  v.  Bigler,  3391. 


4182 


TABLE  OF  CASES. 

[REFERENCES    ARE   TO   PAGES.] 


Barnard, 


Adler,  Matter  of,   3988. 

Adlcr    v.    Metropolitan    El.    Ky.    to., 

OQCQ 

v  Order 'of  American  Fraternal 
Circle,  1448,   1453. 
Adolph   v.   De   Cen,   3038. 

v.De    Ceu,    4038. 
Adriance  v.   Lagrave,   1301. 

V.Sanders,   1831.  „    .„,, 

Adriance,  Piatt  &  Co.  v.  Coon,  1934, 

AdBit'v.   Butler,   3390,   3391. 
v.Hall,   302. 
v.  Sanford,    3409. 
v  Wilson,   4009. 
Aetna  Ins.  Co.   v.   Shuler,   3200 
A    F     Engelhardt   Co.    v.    Benjamin 

1315. 
Agan  v.  File,  498. 
Agar  v.  Curtiss,   307/. 

v.Haines,  1281,   1340. 
v.  Tibbetts,   2118. 
Agate  v.  King,  981. 
Agricultural    Ins.    Co 
630. 
v.  Bean,     2978-2982. 
v.  Darrow,    281,    2615. 
Ahern  v.  Ahem,   1677. 

v.  National  S.  S.  Co     3,05 
Ahlymeyer  v.  Healy,  1811.  1849. 
Ahner  v.   New  York,  N.  H.   &  H.   ti. 

Co.,   798. 
Ah r hart   v.    Stark,    2702. 
Aikin  v.  Martin,   1968. 
Aikman  v.  Harsell,  2910    2926. 
Ainslie  v.   Boynton,    3044. 
Aitken  v.  Clark,  1070. 
Xlamango  v.  Board  Sup'rs  of  Albany 

County,  910,  1012. 
Albany    Belting    &     Supply     Co.    v. 
Grell,  1083.  „ 

Albanv    Brass    &    Iron    Co.    v.    Hott- 
man!  1837,    1841,    1843,    1915,    2592, 
2594,    2629,    3595. 
Albany    Brewing    Co.    v.    Barckley, 

921 
Albany   City   Nat.   Bank  v.   Gaynor, 
3351,  3361.  „ 

Albany  County  Bank  v.  Fader,  1077, 

1079 
Albany  County  Sav.  Bank  v.  McCar- 

Albany6 "lis.   Co.  v.   McAllister,   1285. 
Albert     Palmer     Co.     v.     Dickinson, 
3999. 
v.  Shaw,   1023. 
Albrecht  v.   Canfleld,   2042 
Albright  v.  Kempton,  3265,  66»i.. 

v.  Voorhees,  2108. 
Albring  v.  New  York  Cent.  &  H.  K. 

R.  Co.,  3883. 
Albro  v.  Figuera,  526. 

v.  Rood,   3388. 

Alcock  v.  Davitt,  261S. 

Alcott  v.  Avery,   3065 

Alden   v.   Barnard,   486. 

v.Clark,  1029. 

v  Supreme  Tent  of  K.  of  M., 
3885,  3886.  „„„„ 

Aldinger  v.  Pugh,  1588,  1589,  3603. 


& 


3666. 


Guaranty 
Abrahams, 


Aldrich,  Ex  parte,   544 ,3177. 
Aldrich  v.  Ketchum,  239,  3685,  4010. 

v.  Reynolds,  1615. 
Alexander   v.   Alexander, 
v.  Aronson,   1077. 
v.  Bennett.  124,  160. 
v.  Byron,  2227. 
v.  Katte,  1001. 
v.  Meyers,   1876. 
v.  Osborn,   2276. 
v.Union     Surety 

Co.,    4052.    4068. 
Alexander  Lumber  Co.  ' 

911,   3915. 
Alfaro  v.  Davidson,  2685. 
Alford  v.  Berkele,   1631. 

v.  Cobb,   1443. 
Alfred  v.   Watkins,   891,   942. 
Alger  v.   Alger,   133. 
v.  Johnson,   955. 
v.  New  York  El.   R.  Co.,   2282. 
v.  Scoville,   65. 
v.  Vanderpoel,   10S7. 
Algur  v.  Gardner,  Z281,  2326. 
Alker  v.  Rhoads,   797. 
Allaben   v.   Wakeman,   1045. 
Allaire  v.   Kalfon,  1330. 
Allen  v.  Albany  R.  Co.,  3004 

V.Allen,   30,   2766,   3846,  3848. 

v.  Bagnell,    823. 

v.  Becket,  1915,   4150. 

v  Brown,    378,    379,    1615. 

v.  Collins,   18S6. 

v.  Corn'Exch.    Bank,    3617,   3883. 

v.  Fosgate,    411. 

v.  Fowler  &  Wells  Co.,  2S74. 

v.  Gibbs,  639. 

v.  Godfrey,  105. 

v.  Haskins,   9S5. 

v.  Hendree,  1735. 

v.  McCrasson,    1345. 

v.  Mahon,  2982. 

BUSSES*!.-!**.   1452.    1520. 

v.  Mille,    494. 

v.Patterson,  821.  __,» 

v.  Starring,      3267,      3270,      3316, 
3319. 

v.  Stead,   868,   877. 

v.  Stevens,   3018,   3873. 

v.  Stout,   2337. 

v.  Swan,   2812. 

v.  Trisdorfer,   524. 

v.  United  Cigar  Stores  Co.,  1410. 

v.  Way,  2600. 

v.  Webster,  523. 

v.Wharton,   737. 

v.  Williamson,   3248. 
Allendorph  v.  Wheeler,  381. 
Xllentown  Foundry  &  Mach.  Works 

v.  Loretz,  1919. 
Allentown    Rolling  Mills   v.   Dwyer, 

2559,   2567. 
Allera  v.  Hagerty,  3663. 
Allgro  v.   Duncan,   2290. 
Alliance  Ins.  Co.  y.  Cleveland    1277. 
Allierer  v.  Mail  Print  Ass  n,  2706. 
Allif  v.   Leonard.    2317,    2346. 
v.Wheeler,    2932. 


TABLE  OF  CASES. 


4183 


[REFERENCES  are  to  pages.] 


Allison    v.    Long    Clove    Trap    Rock 
Co.,   2285. 
v.  Scheeper,    2336. 
v.  T.     A.     Snider     Preserve     Co., 
3602. 
Allison  Bros.  Co.  v.  Hart,  141,  994. 
Allyn  v.   Thurston,   3080,   3408. 
Almy  v.  Thurber,  1499. 
Alston  v.  Jones,   3863. 
Althause   v.    Radde,    2051. 
Altman   v.  Hofeller,   3900,  3901. 
Altworth  v.   Flynn,   1513. 
Alvord  v.  Haynes,   3194. 
Alward  v.  Alward,  2147,   2928. 
A.  L.  &  J.  J.  Reyonlds  Co.  v.  Dreyer, 

1590. 
Amberg  v.  Kramer,   1605,  2580,  2582. 
v.  Manhattan  Life  Ins.  Co.,  1408. 
Ambler   v.  Ambler,   1886. 
American    Audit    Co.     v.    Industrial 

Federation,    1441,    2874,    4101. 
American    Bank    Note    Co.    v.    New 

York  El.   R.  Co.,  461. 
American  Book  Co.  v.  "Watson,  4020. 
American  Broom  &  Brush  Co.  v.  Ad- 

dickes,   880. 
American    Copper    Co.    v.    Lowther, 

398,  1052,  2094. 
American    Credit    Indemnity    Co.    v. 

Bondy,    872,    4098. 
American    Distributing   Co.    v.   Ash- 
ley.   1031. 
v.    Distilling    &    Cattle    Feeding 
Co.,  1501. 
American   Dock  &  Imp.    Co.   v.   Sta- 

ley,  987,  1086. 
American    Encaustic    Tilling    Co.    v. 

Reich,    1081,   2225. 
American  Exch.   Bank  v.   Hill,   1960. 

v.  Smith,   2789. 
American   Exch.   Nat.   Bank   v.    New 
York     Belting     &     Packing 
Co.,    2282,    2292. 
v.  Voisin,    1434,   1439. 
v.  Yule  Mach.  Co.,  1684,  1688. 
American    Farm   Co.    v.    Rural    Pub. 

Co.,  4125. 
American    Flask   &   Cap  Co.   v.   Son, 

1346. 
American  Grocery  Co.  v.  Flint,  1692, 

1917. 
American    Horse    Exch.    v.    Strauss, 

1446. 
American  Hosiery  Co.  v.   Riley,   634. 
American  Insulator  Co.   v.   Bankers' 

&  Merchants'   Tel.   Co.,    896. 
American  Ins.  Co.  v.  Fisk,  3226. 

v.  Oakley,    267,    3223,    3227,    3229. 
v.  Simers,    3237. 
American  Lucol  Co.  v.  Lowe,  1091. 
American  Mortg.  Co.  v.  Dewey,  4087. 
American  Nat.  Bank  v.  Grace,  77. 
American    Surety    Co.    v.    Cosgrove, 
3204. 
v.  Crow,   248,    674. 
v.  McDermott,   1642. 
American   Telegraph  &  Cable  Co.  v. 

Day,   1861. 
American    Transfer  Co.    v.   G.   Borg- 
feldt   &   Co.,   4094,   4097. 


American    Trust    &     Sav.    Bank    v. 

Thalheimer,   1S59. 
American  Union  Tel.  Co.  v.  Middle- 
ton,    131,    1295,    1348. 
American  "Water  Works  Co.  v.  Ven- 

ner,    159S. 
Amerman  v.  Amerman,  336. 
Ames    v.    Lockwood,    3230. 

v.  Webbers,   2031. 
Amherst     College     v.     Ritch,     3876, 

3S77    3907 
Ammidon  v.'  Wolcott,    3291,   3336. 
Amnion  v.   Kellar,   1319. 
Amore  v.  La  Mothe,  262. 
Amos   v.   Bradley,    4003. 
Amsdell    v.    Martin,    2635. 
Amsinck  v.   North.   1852. 
Amy  v.   Stein,    384,   2725. 
Anable  v.  Anable,  890. 
Anderson,  Matter  of.   1750. 
Anderson  v.  Abeel,   4087. 

v.  Boyer,  2287. 

v.  Brackeleer,  288,   292. 

v.  Carr,    1589,    2817,    2821. 

v.  Carter,    2165,    2728,   2737,   2739, 
3629,    3689,    3717. 

v.  Continental  Ins.   Co.,   3836. 

v.  Daley,  3631. 

v.  Doty,  890. 

v.  E.  De  Brakeleer  &  Co.,  292. 

v.  Gurlay,   915. 

v.Hill,    63,   67,    69. 

v.  Horn,  919. 

v.  Hough,    2173. 

v.  Johnson,   613,    1807. 

v.  McAleenan,    2324,    2326. 

v.  McCann,   2957. 

v.  Market  Nat.  Bank,  2706. 

v.  Nicholas,    3065. 

v.  O'Reilly,  1403. 

v.  Osborn,    1901. 

v.  Rome,   "W.    &   O.    R.    Co..   2690, 

974.4.      *3^fi9 

v.  School  Dist.  No.   15,    3639. 

v.  Sessions,    291,   307. 

v.  Sibley,  522,  524. 

v.  Speers,   926. 

v.  Tompkins,    1375,    1492. 

v.  Vandenburgh,    573. 
Anderton   v.   "Wolf,   998.   1015. 
Andrews  v.  Andrews,  331,  1980. 

v.  Artisans'   Bank,  980,  981. 

v.  Astor   Bank,    854. 

v.  Betts,  138. 

v.  Borland,   766,   1446. 

v.  Cross,    642,    644,    3035. 

v.  De    Forest,    241. 

v.  Glenville    Woolen     Co.,     1492,. 
1608,    1610,   1613,   3353. 

v.Long,    3998,    3999. 

v.  Mastin,  3274. 

v.  Miles.   2333. 

v.  Monilaws,    2871. 

v.  Newton,   2264. 

v.  O'Mahoney,    3225. 

v.  Prince,   1788. 

v.  Rowan.    1428,    3364. 

v.  Schofleld,      1436,      1517,      1518, 
1521. 

v.  Sehnitzler,  2964,  2976. 


41S4: 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


Andrews  v.  Snvder,  4000,  4003. 
v.  Townshend,   143,   IS  10. 
v.  Tyng,  3902. 
Androvette  v.  Bowne,  591,  1572. 
Angel  v.  Clark.  3229. 

v.  Town  of  Hume,  124. 
Ang-ell  v.  Van  Schaick,  S51,  1093. 
Angier  v.   Hager,   2113,   3003. 
Angle  v.  Kaufman,  1688. 
Anglo-American     Provision     Co.     v. 

Davis  Provision  Co.,  135,  4054. 
Ankersmit   v.   Tuch,   2226.  . 
Annis  v.  Upton,  665,  2766. 
Annsinch  v.  Northrop,  1837. 
Anonvmous,    165,    269,    537,    549,    587. 
593,    657,   658,    659,   661,    1066,    1290, 
1304,    1306,    1678,    1738,    1818,    1873, 
1888,    1920,    2055,    2175,    2561,    2732, 
2975,    3027,    3049,    3257,    32S4,    3343, 
3430,    3656,    3659. 
Ansen  v.   Tuska,  1834,  1841. 
Ansonia  Brass  &  Copper  Co.  v.  Bab- 
bitt, 3118,  3121. 
v.  Conner,   3115,   3184,   3715. 
Ansonia  Clock  Co.   v.   Metcalf,   1345. 
Ansorge  v.    Kaiser,   51,    1004. 
Anthon   v.   Batchelor,   3241. 
Anthony  v.  Skype,  1402. 
v.  Smith,    2701. 

v.  Wood,    1410,    1466,    14S2,    1494. 
Anthony     &     Co.,     Matter    of.     1776, 

1794. 
Anwav  v.   David,    3291,   3313. 
Apel   v.   O'Connor,    2162. 
Apollinaris     Co.     v.     Venable,     1606, 

1734, 
Appeal    Printing    Co.     v.     Sherman, 

4085. 
Appel  v.  Aetna  Life  Ins.  Co.,  3871. 

v.  Brooks,    2869,    2870. 
Applebee  v.  Duke,  3603. 
Appleby  v.   Barry,    306  6. 

v.  Robinson,   1364,    1373. 
Appleton  v.  Appleton,   1809. 

v.  Speer,    1526. 
Apsley  v.  Wooster,  3842. 
Archer   v.    Archer.    3239. 

v.  Mcllravy,    1934,    1939. 
v.  Sixth   Ave.    Ry.    Co.,    2217. 
Architectural  Iron  Works  v.  City  of 

Brooklyn,   3726,   3733,   3744. 
Arctic   Fire    Ins.    Co.    v.    Hicks,    594, 

3290. 
Arden   v.  Walden,   1978. 
Arents  v.  Long  Island  R.   Co.,   2080 

2088,  2102,  2813,  2817.   3045. 
Argall  v.   Bachrach,   767. 
v.  Bryant,   486. 
v.  Jacobs,    2719. 
v.  Pitts,   2860. 
v.  Raynor,    3234. 
Argrave   v.    Blackman,    1345. 
Argus  Co.,   Matter  of,   108,   168,   238, 

593,   599,   600.   602. 
Arkenburgh,  Matter  of,  3984,  3988. 
Arkenburgh     v.     Arkenburgh,      810, 

2863,    3714. 
Arming   v.    Monteverde,    1446. 
Armitage  v.  Hoyle.  1560. 
v.  Pulver,    2602. 


Armour   v.    Leslie,    1004. 
Armstrong,  Matter  of,   3071. 
Armstrong   v.    Craig,    4024. 

v.  Cummings,    831,    3045. 

v.  Danahy,    948,    1064. 

v.Dubois,    3194.    3869. 

v.  Foote,   143. 

v.  Hall,   76. 

v.  Heide,   4091,   4096. 

v.  Loveland,  3857,  4053,  4082. 

v.  McLean,   3372. 

v.  People,    2237. 

v.  Percy,   2736. 

v.Phillips,    663,   1024,    1066. 

v.  Sandford,   4025. 

v.  Trustees     of     Union     College, 
2068. 
Armstrong    Mfg.    Co.    v.    Thompson, 

2732. 
Arnold  v.  Downing,  526,  527,  528. 

v.  Keyes,    2073. 

v.  Norfolk   &   N.    B.   Hosiery   Co. 
2871,   2873. 

v.  Oliver,   642,   2S36. 

v.  Parmelee,    2270. 

v.  Patrick,   2807. 

v.  Rothschild's  Sons  Co.,  3904. 

v.  Shapiro,  1292. 

v.  Steeves,    1338. 

v.  Suffolk  Bank,   1653. 

v.  Treviranus,    2836. 
Arnot  v.  Beadle,    2799. 

v.  Birch,   998,    3415. 

v.  Nevins,  2156,  2162. 

v.  Wright,    3283. 
Arnoux  v.  Homans,  3268. 

v.  Steinbrenner,    2118. 
Arnstein  v.  Haulenbeek,   2347. 
Arrigo   v.   Catalano,    1037. 
Arrow  S.  S.  Co.  v.  Bennett.  2789. 
Arteaga  v.  Conner,   1338,  1355,  1362. 
Arthur  v.  Dalton,    3011. 

v.  Griswold,    2092,    2098,    2276. 

v.  Homestead  Fire  Ins.  Co.,   998. 

v.  Schriever,   2997. 
Artisan's  Bank  v.  Backus.   2286. 

v.  Treadwell,    1634,    2787,    3117. 
Asbestos  Pulp  Co.  v.  Gardner,   2268. 
Aschemoor    v.    Emmvert,    3306. 
Ash  v.  Cook,  2089. 
Ashley  v.  Lehmann,   2376. 

v.  Turner,    3347. 

v.  Whitney,    1839. 
Ashworth  v.  Wrigley,   2117. 
Asinari  v.  Volkening,  611,  662,  3226. 
Askins  v.  Hearns,   1327. 
Aspinwall  v.  Balch,  3238,  3239,  3245. 
Associate  Alumni  v.   General   Theo- 
logical   Seminary,    3S. 
Association    of    the    Bar    v.    Randel, 

254. 
Astie   v.    Leeming,    1599. 
Astor  v.   New  Tork  Arcade  Ry.   Co. 
416. 

v.  Romayne,   3222. 
Astrand  v.  Brooklyn  Heights  R.  Co., 

295. 
Atkins  v.  Elwell,  2268. 

v.  Judson,    1012. 

v.  Lefever,   2940. 


TABLE  OP  CASES. 


41S5 


[REFERENCES  are  to  pages.] 


Atkinson    v.    Abraham,     2S20,    2826, 
2870,    4085. 
v.  Holcomb,    359. 
v.  Manks,    631,    1860. 
v.  Sewine,    3307. 
Atlanta   Hill    Gold   Min.    Co.    v.    An- 
drews,   48. 
Atlantic    Ave.    R.    Co.    v.    Johnson, 

3854. 
Atlantic  Dock  Co.  v.  Libby,  3013. 
Atlantic  Mut.  Ins.  Co.  v.  McLoon,  32. 
Atlantic   Sav.   Bank   v.   Hiler,    296. 
Atlantic    &    Pac.    Tel.    Co.    v.    Balti- 
more  &  O.    R.   Co.,   128,   134. 
344,     619,     960,     1584,     15S8, 
1590. 
v.  Barnes,   3704. 
Atlas    Iron    Const.    Co.,    Matter    of, 

1656. 
Atlas   Iron   Const.    Co.   v.    Ferguson, 

2929. 
Atlas    Refining    Co.    v.    Smith,    2796, 

2802,   3073,    3074,   3077. 
Attleboro     Nat.    Bank    v.     Wendell, 

2960. 
Attorney  General,  Matter  of,  17,  254, 

3873,    3886. 
Attorney    General    v.    Citv    of    New 
York,    426,    2381. 
v.  Continental  Life  Ins.  Co.,  370, 

579,  1643.  1655.   2634,  2636. 
v.  Guardian   Mut.   Life    Ins.    Co., 

814. 
v.  North-American  Life  Ins.  Co., 
307.     432,     1652,     1654,     3656, 
3659. 
Attrill  v.  Rockaway  Beach  Imp.  Co., 

595. 
Atwater  v.  Fowler.   497. 

v.  Williams,  550. 
Atwood,  Matter  of,   3859. 
Auburn  City  Bank  v.  Leonard,  50. 
Auburn    City    Nat.    Bank    v.    Hun- 

siker,   3835. 
Audenreid    v.    Wilson,    2969. 
Audit     Co.     of    New    York     v.     Mc- 

Naught,  2172. 
Auerbach   v.   Delaware,  L.    &  W.    R. 
Co.,   1834. 
v.  Peetsch,    2206. 
Augel   v.    Clark,    3230. 
Augner   v.    New    York    City,    2852. 
Augrich  v.   McOwen,    1579. 
August  v.    Fourth   Nat    Bank,   1727. 
Auld    v.    Manhattan    Life    Ins.    Co., 

2286. 
Aultman  &  Tavlor  Co.  v.  Svme,  696, 
2796,    3068,    3069,    3189,    3275,    3398. 
Austen,  Matter  of,  506. 
Austen  v.  Westchester  Tel.  Co..  953. 
Austin  v.  Ahearne.  2645. 
v.  Byrnes.    3300. 
v.  Carswell,    2277. 
v.  Chapman,   1601. 
v.  Figurira,   3393,  3399,   3414. 
v.  Hartwig,    300S. 
v.  Rawrlon,    26,    30. 
v.  Wauful.   1042,  1477,   3664. 
Austin's  Will,   Matter  of,   3976. 


Austrian  B.  F.   Co.  v.  Wright,   4082. 

4132. 
Averell  v.  Barber,   606. 
Averhill  v.  Patterson.   2114,  2115. 
Averill   v.    Loucks,    3150. 

v.  Patterson,    47. 

v.  Taylor,    106S. 

v.Williams,   271,   30S9,   3194. 

v.  Wilson,    3129,    3158. 
Avery  v.  Ackart,  3337. 

v.  Allen,   1958. 

v.  Cadugan,   586. 

v.  Folev,  2618. 

v.  Hyde,   2919. 

v.  Jacob,    262. 

v.  New   York    Cent.    &    H.    R.    R. 
Co.,    947,    990,    1005,    1922. 

v.  Starbuck,   1056. 

v.  Willis,   183,   1S6. 

v.  Woodbeck,    4012. 
Axford   v.    Seguine,    1434,    1453. 
Aycinena,  Matter  of,  144. 
Ayer  v.   Seymour,   1560. 
Ayers  v.   Western  R.  Corp.    3939. 
Aylesworth  v.  Brown,   3177. 

v.  St.  John,   247. 
Aymar  v.  Chace,   234,   1021. 

v.  Chase,    2848. 
Ayrault  v.  Chamberlain,  965,  2208. 

v.  Chamberlin,    241. 

v.  Sackett,   2596. 
Ayres  v.  Covill,   168. 

v.  O'Farrell,    1092. 

v.  Village      of      Hammondsport, 
2606,   2734. 

v.  Water  Com'rs  of  Binghamton, 
2691. 

v.  Western  R.  Corp  ,  807,  3717. 
A.    &    P.    Henry    &    Co.    v.    Talcott, 
4080,  4120,  4121,  4139. 


Baas  v.    Pain,    17S5. 
Babbitt  v.    Crampton,    1837. 
Babcock,  Matter  of,   17. 
Babcock  v.  Chase,  383. 

v.  Clark.    190,    4111. 

v.  Kuntzsch.     536,     538. 

v.  People,    268S.   2704. 
Babcock's  Estate,  Matter  of,  3945. 
Bach  v.  Gilbert,  3103. 
Bachiller  De  Ponce  De  Leon,  Matter 

of.  41,   3257. 
Bachman  v.   Goldmark,   1345. 
Bachrach  v.  Manhattan  R.  Co.,  3845. 
Back  v.   Crussell,   779. 
Backus,   Matter  of,   3340. 
Backus  v.  Kimball,  1468,  1495. 

v.  Stillwell.    10. 
Bacon   v.  Abbey  Press,   3663. 

v.  American   Surety   Co.,    1469. 

v.  Chapman,    4103,    4108. 

v.  Dinsmore,    363. 

v.  Goldsmith.    3322. 

v.  Orossmann.    3200. 

v.  Kendall,    1305. 

v.  Magee,  578. 

v.  Proctor,  2267. 


41S6 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


Badanea  v.  Feder,  3S69. 
I'.a.l.au    v.    Niles,    825. 
Badger   v.   Celler,   264. 

v.  Gilroy,    588,    S5S,    871. 

v.  Johnston,   4175. 

v.  Sutton,    1638. 

v.  Wagstaff,   1575. 
Baer  v.  McCullough.  2073. 

v.  Seymour,  1067,  10S8. 
Baere  V.   Armstrong,    1459. 
Bagaley  v.  Vanderbllt,  1568. 
Bagg  v.   Robinson,   1575. 
Baggott   v.    Eagleson,    340S. 
Bagley  v.   Jennings,   3687. 

v.  Smith,   2335. 
Bagullv   v.    Morning  Journal   Ass'n, 

2308. 
Bahnsen   v.    Horwitz,    4160. 
Bailey,  Matter  of,   259,   2676,   3794. 
Bailey  v.   Belmont,   1629. 

v.  Bergen,    2958. 

v.  Burton,   3113. 

v.  Carter,    2635. 

v.  County      of      Buchanan,      469, 
2011. 

v.  Daigler,    290S. 

v.  Inglee,   394. 

V.  Johnson,    2940. 

v.  Kraus,    4120. 

v.Lane,   1074,   1080,  3328,   3351. 

v.  Miles,    1681,   1689. 

v.  Murphy,   298,   301. 

v.  O'Mahoney,    1629. 

v.  Prince,   1293. 

v.  Ryder,    128,    1628. 

v.  Sargent  Granite  Co  ,  794. 

v.  Stone,   2917,   3034. 

v.Williams  Mfg.  Co.,  1840,  1844. 
Baily  v.  Hornthal,  3399. 
Bain   v.   Globe  Ins.   Co.,   743. 

v.  Illuminated    Tile    Co.,    2828. 
Bainbridge   v.   Friedlander,    864. 
Baine  v.  Rochester.  2907.  2940,  3031. 
Baird    v.    City    of    New    York,    2143, 
2147. 

v.  Daly,    139,    2691. 

v.  Gillett,    3S61. 

v.  Richardson,    2069. 
Bakeman  v.  Pooler,  2008. 

v.  Rose,    2256. 
Baker,  Matter  of,  3789,   4055. 
Baker  v.   Baker,  3232. 

v.  Brintnall,   1416. 

v.  Brundage,   3355,   3359. 

v.  Codding,    955,    3039. 

v.  Curtiss,    2126. 

v.  Dumbolton,    4021. 

v.  Hatfield,    3692. 

v.  Herkimer.    3302,    3351. 

v.  Hunt,   2015. 

v.  Kenworthy,   3107. 

v.  Leland,  493. 

v.  Lever,    3903. 

v.  Loring,    954. 

v.  McLoughlin,    1769. 

v.  McMullen,   2969. 

v.  Moore,    2629,    2645. 

v.  Oakwood,   463. 

v.  Potts,    3393. 

v.  Sleight,   1938. 


Baker  v.  Spencer,  1765. 

v.  Stephens,    595,    753,    755,    756, 
792,   3S41. 

v.  Taylor,   3192. 

v.  Van   Epps,   3374. 

v.  Walsh,    2560. 
Baker    White    Brass    Co.    v.    Dono- 

hue,   926. 
Bakewell  v.  Ellsworth,  3113. 
Balbi  v.  Duvet,  262. 
Balcom  v.  Adams,   1806. 
Balde    v.    Smith,    3424. 
Baldinger  v.  Levine,  3868. 
Baldwin,   Matter   of,   527,   .2771. 
Baldwin   v.    Baldwin,    3217. 

v.  Brooklyn      Heights      R.      Co., 
4164. 

v.  Brown,    4039. 

v.  Crary,  2020. 

v.  Eazler,    3378. 

v.  Latson,  265. 

v.  Perry,   3269,   3270. 

v.  Reardon,    2998. 

v.  Rice,   4057. 

v.  Roberts,    2842. 

v.  Rood,  1033. 

v.  Talmadge,   128. 
Balestier  v.  Metropolitan  Nat.  Bank, 

1658. 
Ball  v.  Evening  Post  Pub.   Co.,   868, 
964,  17S3,  1787. 

v.  Goodenough,   3347. 

v.  Larkin,   83. 

v.  Loomis,   3194. 

v.  Pratt,   3148. 

v.  Shell,   3104. 

v.  Sprague,   3038. 
Ballantyne      v.      Steenwerth,      2956, 

2958. 
Ballard   v.    Ballard,    3768. 

v.  Burrowes,    811. 

v.  Fuller,  1344,  1345. 

v.  Hitchcock  Mfg.  Co.,   3868. 

v.  Lockwood,   2231. 
Ballou  v.  Boland,  3297,  3345,  3419. 

v.  Parsons,  1047,  2626,  2627,  3033. 
Ballouhey  v.  Cadot,  816. 
Ballston    Refrigerating   Storage   Co. 

v.  Defeo,   1955,    1957. 
Balmford  v.   Grand  Lodge,  A.   O.  U. 

W.,  743. 
Baltimore    Mach.    Works    v.   McKel- 

vey,  876. 
Baltimore    &    O.    R.    Co.    v.    Arthur,. 

1866,   3S56. 
Balz  v.  Shaw,   2678. 

v.  Underhill,   1014. 
Bamberger    v.    Duden,    1455,    2564. 

v.  Fillebrown,   3377. 

v.  Fire   Ass'n,    2562. 

v.  Kahn,    1329. 

v.  Oshinsky,    980. 

v.  U.  S.  Fidelity  Co.,  1837. 
Banagan  v.  Clark,  2332. 
Bancker  v.  City  of  New  York,   2618.. 
Bancroft  v.   Sheehan,  2224,  2226. 
Bander  v.  Covill,   5S5. 
Bandman    v.    Jones,    1797. 
Bang  v.  McAvoy,  3709,  3893. 
Bangs  v.  Avery,   3191. 


TABLE  OF  CASES. 


4187 


[REFERENCES  are  to  pages.] 


Bangs  v.  Duckinfield,   122,  1638. 
v.  Mcintosh,   923. 
v.  Selden,    233,   234,   347,   1945. 
v.  Strong,    3192. 
Bank    Com'rs    v.    Bank    of    Buffalo, 

266,  1588. 
Bank  for   Savings  v.  Hope,   3292. 
Bank  of  Attica  v.  Metropolitan  Nat. 
Bank,   1683,    3818. 
v.  Wolf,    2932. 
Bank   of   British    North    America   v. 
Merchants'   Nat.   Bank,    493. 
v.  Suydam,   1002. 
Bank  of  California  v.  Collins,   2067. 
Bank  of  Charleston  v.  Emeric,  2374, 
3854. 
v.  Hurlbut,    1735. 
Bank  of  China  v.  Morse,   3918. 
Bank   of  Commerce  v.   Michel,   1738, 
2030. 
v.  Rutland  &  W.  R.  Co.,  12,   237. 
Bank    of     Cooperstown     v.     Corlies, 

3654. 
Bank    of    Genesee    v.    Spencer,    234, 

636,    3267. 
Bank  of  Geneva  v.  Gulick,   855. 

v.  Reynolds,   1368,    3637. 

Bank  of  Havana  v.  Magee,  797,   997, 

1036,   3898. 

v.Moore,    1337,    1349,    3748,    3749. 

Bank  of  Kinderhook  v.  Gifford,  2876. 

Bank    of     Lansingburgh    v.     Crary, 

3106,   3117. 
Bank   of  Lowville  v.    Edwards,   827, 

997,   1075. 
Bank   of  Metropolis  v.    Faber,   3622. 
v.  Lissner,   1052,    1056. 
v.  White,   1301. 
Bank  of  Michigan  v.  Jessup,  1887. 
Bank  of  Middletown  v.  Huntington, 

266. 
Bank  of  Mobile   v.  Phoenix  Ins.  Co., 

2963,    2966,    3000,    3001. 
Bank  of  Monroe,  Ex  parte,  544,  3178. 
Bank    of    Monroe    v.    Schermerhorn, 

1630,    1639,    3424. 
Bank   of  Montreal  v.   Gleason,   3399, 

3421. 
Bank  of  Mutual  Redemption  v.  Stur- 

gis,    1499,   1500,    1628. 
Bank  of  New  York  v.  Southern  Nat. 
Bank,   2300. 
v.  Stryker,   251. 
Bank  of  Niagara,  Matter  of,  1656. 
Bank  of  Niagara  v.  Austin,  2982. 
Bank  of  Orange  v.  Brown,  32. 
Bank     of     Pittsburgh     v.     Murphy, 

1797. 
Bank   of  Port  Jefferson   v.   Darling, 

3282. 
Bank  of  Rochester  v.  Emerson,  705, 

3066,   3398. 
Bank     of     St.     Albans    v.     Knicker- 

backer,  1936. 
Bank  of  Salina  v.  Alvord,   3829. 
Bank  of  Silver  Creek  v.   Browning, 

238,  1814. 
Bank  of  State  of  Maine  v.  Buel,  896. 
Bank    of   Syracuse   v.    Wisconsin   M. 
&  F.  Ins.   Co.   Bank,   3943. 


Bank  of  U.    S.   v.   Jenkins,   3204. 
Bank  of  Utica   v.   Childs,   500. 

v.  Mersereau,    3151. 

v.  Root,    562. 
Bank  of  Vergennes  v.  Warren,  3147, 

3158,    3176. 
Bank     of     Wilmington     v.     Barnes, 

1072. 
Banker  v.    Fisher,    2344,    2667. 

v.  Knibloe,    2719. 
Banks   v.    Carter.    3832. 

v.  Maher,   1797,   2076,   2077. 

v.  Potter,    1636,    3356. 

v.  Walker,  561. 
Bannerman    v.    Quackenbush,    721. 

797,    1990,    1999,   3969. 
Bannister,  Matter  of,  580. 
Banque    Agricole    of    Roumania    v. 

Ungureanu,   1320. 
Banta  v.   Banta,    4107,   4169. 

v.  Marcellus,  2928,  2937. 

v.  Merchant,    3220. 

v.  Naughton,  2948. 
Bantes  v.  Brady,  2770. 
Bantleon    v.    Meier,    2656,    3646. 
Barbeau  v.  Picotte,  2617. 
Barber   v.    Cromwell,    2576. 

v.  Goodell,   785. 

v.  Gray,   992. 

v.  Marble,    1037. 

v.  People,    3324. 

v.  Stettheimer.   4015. 
Barber    Asphalt    Pav.     Co.    v.    New 
York  Postgraduate  Medical  School 
&  Hospital,   2366. 
Barbour  v.  Boas,  2133. 
Barclay  v.  Brown,  2758. 

v.  Culver,    3012. 

v.  Maloney,    1590. 

v.  Quicksilver     Min.      Co.,      997, 
1632. 
Bareither  v.  Brosche,  3276,  3362. 
Barheydt  v.  Adams,  2827. 
Barhyte  v.  Hughes,  976. 
Bark  v.   Carroll,    930,    1684. 
Barker,  Matter  of,   2037. 
Barker    v.    Binninger,    3116,    3186. 

v.  Burton,    2930. 

v.  Cocks,    2760. 

v.  Cook,  546,  1337. 

v.  Cunard  Steamship  Co.,  2346. 

v.  Johnson,   3295. 

v.  Laney,   2929. 

v.  Mathews,    3121. 

v.  Miller,    3121. 

v.  Piatt,   977. 

v.  Town    of    Oswegatchie,    3015. 

v.  Wheeler,   1341. 

v.White,    2599,    3668, 
Barkin   v.   Rosenbach,   2172. 
Barkley,  Matter  of,   165. 
Barkley  v.  New  York  Cent.  &  H.  R. 
R.    Co.,    274,    278,    280,    1571, 
1593. 

v.  Rensselaer    &    S.    R.    Co..    858, 
859,  S60. 

v.  Williams,    70. 
Barlow  v.  Barlow,  2923. 

v.  Myers,    380. 

v.  Pease,  847. 


41SS 


TABLE  OF  CASES. 


[REFERENCES  are  to  tages.] 


Barlow  v.  Scott.  60. 
Barnard    v.    Darling,    3188. 

v.  Dimms,   41. 

v.  Gantz.    2682. 

V  Hall,  2903,  3023,  3960,  3965. 

v.  Heydrick,    551,    720,    765,    772, 
1!  0  III 

v.  Lawyers'  Title  Ins.  Co.,   4108, 
4110. 

v.  Onderdonk,   467. 

v.  Wheeler,  1932.  . 
Barnes,  Matter  of,    260. 
Barnes  v.  Barnhart,   4067. 

v.   Brown,    398,    2095. 

v  City  of  New  York,  1861,  1864. 

v.  Courtright,    490,    1649,    3377. 

v.  Denslow,   3012. 

v.  Goss,   4130. 

v.  Levy,    3254,    3316. 

v.  Light,    463. 

v.  Loew,   385S. 

v.  Maguire,  59. 

v.  Matteson,  847. 

v.Meyer,    3020. 

v.  Mobile  &  N.  W.  R.  Co.,  747. 

V.Morgan,    3261,    3365,    3406. 

v.  Mott,    2799. 

v.  O'Reilly,   2664. 

v.  Seligman,      298,      1033,      1893, 
2597 

v.  Smith,'   63,   74.   396. 

v.  Stoughton,  3231,  3673,  3720. 

v.  West,   2569. 
Barnett  v.  Meyer,  1028. 

v.  Moore,   3344,   3349. 

v.  Selling,   1283,    1284. 
Barney   v.    Board    of   Rapid    Transit 
R.   Com'rs,    1565. 

v.  Burnstenbinder,   348,    361. 

v.  Fuller,    2277. 

v.Keith,    2912. 

v.  King,    107S. 

v.  Northern    Pac.    R.    Co.,    799. 
Barnum    v.     Seneca    County    Bank, 

v  Williams,      2597,     2598,      4118, 
4119,  4121. 
Baron  v.  Biaren,  1386. 
v.  Brummer,   3406. 
v.  Cohen,    269,    2878. 
Barone  v.  O'Leary,  862. 
Barrell  v.    Todd,   766. 
Barrelle    v.    Pennsylvania    Ry.    Co., 

2329. 
Barrett    v.    American    Telephone    & 
Telegraph  Co.,  742,  743. 
v.  Joslynn,   823. 
v.  Kling,   2389. 
v.  New  York  Cent.  &  H.  R.  Co., 

2695. 
v.  Palmer,  144. 
v.  Sayer,  2938. 

v.  Third    Ave.    R.    Co.,    270,    271, 
2692,   2703. 
Barretto    v.    Rothschild,    4095. 
Barrie  v.  Dana,   3066. 

v.  Yorston,   1072. 
Barrington  v.   Watkins,   3301. 
Barron  v.  People.  1728. 

v.   Sanford,    1345,   2570. 


Barron  v.  South  Brooklyn  Saw  Mill 
Co.,  779,  1388,  2081. 
v.  Yost,  1040. 
Barrows  v.  Hodgkins,   2331. 
Barry  v.   Coville,   2678. 

v.  Equitable     Life     Assur.     Soc, 

2931. 
v.  Fisher,   1392,  1408. 
v.  Galvin,  1815. 
v.  Mutual     Life     Ins.     Co.,     708, 

1869. 
v.  Third  Ave.  R.  Co.,   2905,   2999, 

4061,    4064. 
v.  Whitney,  259. 
v.  Winkle,   2901. 
Barson  v.  Mulligan,   3962. 
Barstow   v.   Randall,    612. 
Barstow  Stove  Co.  v.  Darling,  1438. 
Bartholomay  Brewing  Co.  v.  Haley, 

49. 
Bartholomew   v.    Lyon,   997. 

v.  Seaman,    491. 
Bartlett  v.  Drew,  3399. 
v.  Gale,   3150. 
v.  Judd,    3159,    3160. 
v.  McNiel,    3272. 
v.  Musliner,    1684. 
v.  Spicer,   138,    140. 
v.  Sutornis,   1325. 
Barto    v.    Himrod,    2360. 
Barton    v.    Albert   Palmer   Co.,   1492. 
v.  Griffin,    945,    1075. 
v.  Herman,    2629. 
v.  Speis,   1005,   1913,   1914. 
Bartow  v.    Sidway,   861. 
Barwick  v.   Youmans,    3704. 
Bascom  v.  Feazler,  2S16. 
Baskin  v.   Huntington,    3076. 
Bassett  v.   Fish.  796,   3901. 
v.  French,    2860,    2861. 
v.  Pitz,    1296,    1319. 
Bastable  v.  City  of  Syracuse,  3796. 
Bastian  v.  Keystone  Gas  Co.,  2706. 
Batcheldor   v.    Nugent,    3277. 
Batchelor   v.    Albany    City    Ins.    Co., 

2567. 
Bate  v.  Fellowes,  1058. 

v.  McDowell,    1383,    1454. 
Bateman   v.   Hunt,    4178. 
Bates   v.   Bates,   2612. 

v.  Eagleton  Mfg.  Co.,   2574. 

v.  Fish    Bros.    Wagon    Co.,    3012. 

v.  Gorman,    4018. 

v.  Holbrook,   3605,   3715,   3927. 

v.  Jaines,    588. 

v.  Lidgerwood    Mfg.     Co.,     2799, 

3138. 
v.  Loomis,   2936. 
v.  Lyons,    3388. 
v.  Merrick,    690. 
v.  New    Orleans.    J.    &    G.    N.    R. 

Co.,     747,    1409,    1410. 
v.  Norris,  2918. 
v  Plasmon  Co.  of  America,  663, 

4117. 
v.  Plonsky,  1496. 
v.  Rosekrans,   973,    984,    988. 
v.  Salt  Springs  Nat.  Bank,  1044. 
v.  United    Life    Ins.    Ass'n,    170, 
602. 


TABLE  OF  CASES. 


4189 


[REFERENCES   ARE   TO   PAGES.] 


Bates  v.  Voorhees,  3690. 

Bath   Gas  Light  Co.  v.   Claffy,    2730. 

Bathgate  v.   Haskin,    262,    973,   1990, 

1999,  2000,  3962. 
Bathrick  v.  Coffin,  3917. 
Batterman  v.  Finn,  341,  158S. 

v.   Journal  Co.,   889. 
Battersby  v.  Collier,  2723. 
Batterson  v.  Ferguson,  3408. 

v.  Osborne,  2S4. 
Battin  v.  Healey,  2690. 
Battle,  Estate  of,  340. 
Bauer  v.  Bauer,  2557,  2639. 

v.  Betz,  3329. 

v.  Dewey,  431. 

v.  Parker,  3758,  4107. 

v.  Schevitch,  687,  1327,  1328. 
Baulec    v.    New   York    &    H.    R.    Co., 

2281,   2283. 
Baum,  Matter  of,  250. 
Baum's    Castorine    Co.    v.     Thomas, 

1076,  4028. 
Bauman  v.   New  York  Cent.   R.  Co., 

617. 
Baumann  v.  Jefferson,  43,  378. 

v.  Moseley,  2639,  2649,  2730,  3887. 
Baumeister    v.    Demuth,    2045,    4052, 

4080. 
Baumler  v.  Ackerman,  3260. 
Baur  v.  Betz,  256. 
Bausch  v.  Ingersoll,  1044. 
Baxter  v.  Arnold,  807. 

v.  Drake,  1299,  1300. 

v.  McDonnell,  1014,  3622. 

v.  Missouri,    K.     &    T.     Ry.    Co., 
1500. 

v.  Seaman,  536. 

v.  Van  Dolsen,  207. 
Bayard  v.  Malcom,  5S6. 
Bayaud  v.  Fellows,  1566. 
Baylis  v.  Bullock  Elec.  Mfg.  Co.,  141, 
2144,  2145,  2152,  2156. 

v.  Stimson,  947. 
Bayliss  v.  CockcrQft,  2271. 
Bayne  v.  Hard,  4111. 
Bazuro  v.  Johnson,  168S. 
Beach  v.  Bainbridge,  792. 

v.  Bay  State  Steamboat  Co.,  904. 

v.  City  of  New  York,  1780.  1797. 

v.  Cooke,  2667. 

v.  Crain,  55. 

v.  Fulton  Bank.  2S71. 

v.  Gregory,  2389. 

v.  Hollister,    3114,    3136,    3137. 

v.  King,   829. 

v.  Tooker,  2713. 
Beacham's    Assignees    v.    Eckford's 

Ex'rs,  2928. 
Beacom  v.  Rogers,  737,  799. 
Beadleston  v.  Alley,  2113. 

v.  Furrer,  4100. 
Beady  v.  Rothschild,  3624. 
Beakes  v.  De  Cunha,  647. 
Beal  v.  Finch,  2237,  2362. 

v.  Union  Paper  Box  Co.,  1073. 
Beales  v.  Finch,  2760. 
Beall  v.  Dey,  1735. 
Beals  v.  Allen.  3105. 

v.  Cameron,  47. 
Beaman  v.  Lyon,  954. 


Beamish  v.  Hoyt,  3366,  3368. 
Bean  v.  Edge,  2598. 

v.  Tonnele,    446,    575,    1795,    3184, 
3273,  3283. 
Bear    v.    American    Rapid    Tel.    Co.. 

992. 
Beard  v.  Hale,  2255,  2256. 

v.  Kipp,  1963. 

v.  Sinnott,  3127. 

v.  Snook,  3307. 

v.  Tilghman,  1033. 

v.  Yates,  2766. 
Beards  v.  Wheeler,  1990. 
Beardslee  v.  Ingraham,  4133,  4136. 
Beardsley  v.  Bowker,  4008. 

v.  Dickerson,  1941,  1947. 

v.  Dygert,  2559. 

v.  Ontario  Bank.  3106. 

v.  Stover,  969. 
Beardslev     Scythe     Co.     v.     Foster, 

3409,  3929. 
Beams  v.  Burras,  1841. 

v.  Gould,  1017. 
Bearup  v.  Carraher,  2635. 
Beary  v.  Hoster,  2140,  3635. 
Beattie  v.  Larkin.  815. 

v.  Niagara  Sav.  Bank,  2722. 
Beaumond    v.    Diecks'     Pharmaceu- 
tical  Extract   Co.,   2851. 
Bech  v.  Ruggles,  1694. 
Bechstein  v.  Schultz,  3219,  3230,  3238. 
Bechtle  v.  Manhattan  Ry.  Co.,  1873„ 

1877. 
Beck  v.  Allison,  1032,  1034,  1040. 

v.  Bohm,  4145. 

v.  Burdett,  3419. 

v.  Kerr,  3950. 

v.  Stephani,  S16,  1051. 
Beck's  Will,  Matter  of,  3976. 
Becker,  Matter  of,  3337,  3350. 
Becker   v.   Becker,    1416,    3127,    3297. 

v.  Boon,  2010,   2013. 

v.  Fischer,  2677. 

v.  Hager,   646,   1596. 

v.  Koch,  2237,  2262,  2263,  3715. 

v.  Laitin,  3861. 

v.  Metropolitan  El.   R  Co.,  3952, 
3953. 

v.  Metropolitan     Life     Ins.     Co.,. 
4159. 

v.  Porter,    3072. 

v.  Torrance,  3298,   3363,  3369. 

v.  Town    of    Cherry    Creek,    353, 
1947. 

v.  Winne,  1734,   1765,  1769. 
Beckham   v.    Hague,    480,    486,    1890, 

1895. 
Becklev  v.  Chamberlain,   S89,   890. 
Beckwith,     Matter     of,     3644,     3674, 

3686. 
Beckwith  v.  New  York  Cent.  R.  Co., 
2311. 

v.  Rochester  Iron  Mfg.  Co.,  1031. 
Bedell  v.  Commercial  Mut.  Ins.  Co., 
2311. 

v.  Powell,  2115. 

v.  Sturta,  1347. 
Bedford  v.   Terhune,   1033. 
Bedlow  v.  Stillwoll,  1070. 
Beebe  v.  Bull,  2269. 


4190 


TABLE  OF  CASES. 


[REFERENCES    ARE   TO   PAGES.] 


Beebe  v.  Griffing.  3612. 

v.  Kenyon,  :;.'!38. 

V.  Marvin.  1078. 

v.  Mead,  2756. 

v.  Morrell,  536. 

v.  Parker,   1887. 

v.  Richardson,  178S,  1808. 

v.  Richmond      Light,      Heat      & 
Power  Co.,  433,  3660. 

v.  Robert,  2696. 
Beech  v.  Southworth,  679. 
Beecher  v.  Barber,  1424. 
Beekman  v.  Bond,  2694. 

v.  Cutler,  735. 

v.  Frost,  3S57. 

v.  Lansing",  3116. 

v.  Saratoga  &  S.  R.  Co.,  2139. 
Bookman's  Case,  222. 
Beeman  v.  Banta,  3770. 
Beer  v.  Simpson,  37,  448. 
Beers,  Matter  of,   2822,  2828. 
Beers  v.  Chelsea  Bank,  1657. 

v.  Hendrickson,   270,   2S39. 

v.  Metropolitan   St.   R.  Co.,   4164. 

v.  Shannon,   717,    921,   2809,    3594, 
3595. 

v.  Washbond,  4061. 

v.  West  Side  R.  Co.,  4167. 
Beethoven  Piano  Organ  Co.  v.  C.  C. 

McEwen  Co.,  906. 
Begen  v.  Curtis,  4045. 
Beger  v.  Pagett,   3198. 
Beggs,  Matter  of,  244,  246. 
Behan  v.  Phelps,  742. 
Behlen  v.  Behlen,  2037. 
Beil   v.    Supreme   Council,   American 

Legion  of  Honor,   2012., 
Beinhauer  v.  Gleason,  3682. 
Beirne  v.  Sanderson,  4093. 
Beitz  v.  Puller,  2S09. 
Belasco  v.  Klaw,  4094. 
Belden  v.  Andrews,   3899. 

v.  Davies,  2293. 

v.  Devoe,  558,  561. 

v.  State,  527. 

v.  Wilcox,  1445. 

v.  Wilkinson,  132,  810,  996,  1011. 
Belding   v.    Conklin,    2974. 

v.  Ladd,  1934,  1962. 
Belknap  v.  Hasbrouck,  3275,  3277. 

v.  Sickles,  450. 

v.  Waters,  13,  17,  3639. 
Bell  v.  City  of  Rochester,  1570. 

v.  Clarke,    4126,   4142. 

v.  Gittere,  186,  927,  3245. 

v.  Good,  806,  808. 

v.  Heatherton,  867,  868. 

v.  Halford,  3866. 

v.  Lesbini,  976. 

v.  McMaster,  2304. 

v.  Merrifield,  2765. 

v.  Moran,  3867,  4020. 

v.  Noah,  2968. 

v.  Polymero,  4068,  4102,  4152. 

v.  Sun  Pub.  Co.,  1707. 

v.  Vernooy,  231. 

v.  Whitehead  Bros.  Co.,  1957. 

v  Yates   837 
Bellamy  v.  Guhl!  693,  740,  2040,  2810. 
Bellinger  v.  Ford,  262. 


Bollinger  v.  Gardner,  672,  1327. 

v.  Martindale,  613,  639. 
Belloni  v.  Nathan,  1334. 
Bellows  v.  Pearson,  231. 

v.  Shannon,  1338. 
Belmont  v.  Cornen,  765,  766,  768,  770, 
775. 

v.  Erie  Ry.  Co.,  635,  637,  638,  641, 
642,   643,  645,  3595,  3786. 

v.  Lane,  1403,  1519. 

v.  Ponvert,  2376,  2754. 

v.  Sigua    Iron     Co.,     1433,     1522, 
1525. 
Belsena    Coal    Min.    Co.    v.    Liberty 

Dredging  Co.,  1078. 
Belt  v.  American  Cent.  Ins.  Co.,  3969. 
Beman  v.  Douglas,  3150. 

v.  Todd,  3619. 
Bennett  v.  Plattsburgh  &  M.  R.  Co., 

3106. 
Bemis  v.  Huntington,  3720. 
Bend  v.  Ruckman,  2388. 
Bender  v.  Blessing,  528. 

v.  Sherwood,  1703,  1862. 

v.  Terwilliger,  2203,  -2303. 
Bender's  Will,  Matter  of,  1982. 
Bendernagle  v.  Cocks,  49. 
Bendheim  v.  Herter,  2296. 
Bendit  v.  Annesley,  942. 

v.  Third  Ave.  R.  Co.,  2323. 
Bendix  v.  Saul,  3857. 
Benedict  v.  Arnoux,   808,   2871,   3902. 

v.  Benedict,  1604,  1605. 

v.  Cobb,  2095. 

v.  Dixon,  1605,  2123. 

v.  Eldridge,  3866. 

v.  Guardian  Trust  Co.,  64. 

v.  Holliday,  1291,  28S8. 

v.  Johnson,  2342. 

v.  Richardson,  1760. 

v.  Seymour,  926,  950,  965. 

v.  Slocum,  4079. 

v.  Smith,  2839. 

v.  Warriner,  2990. 
Benedict    &    Burnham    Mfg.    Co.    V. 
Thayer,  3096,  3207,  3726,  3787,  3842. 
Beneville  v.   Church  of  St.   Bridget, 
872 

v.  Whalen,  1656. 
Benjamin  v.  Allen,  2379. 

v.  Myers,  3295,   3357. 

v.  New  York  El.   R.  Co.,  2618. 

V.  Taylor,  76. 

v.  Ver  Nooy,  2952,  2955,  3969. 
Benkard  v.  Babcock,  3664,  3666. 
Benn  v.  First  Nat.  Bank,  2565. 

v.  Owen,  357. 
Benner  v.  Benner,  2935. 
Bennet  v.   Bennet,  2617. 

v.  Moody,  203. 
Bennett,   Matter   of,    3625. 
Bennett    v.    American    Surety    Co., 
3733. 

v.  Austin,    2726,    3225. 

v.  Bagley,    3144. 

v.  Bates,   3871. 

v.  Buchan,    2617. 

v.  Chapin,    3871. 

v.  Complete   Electric  Const.   Co., 
1483,    1638. 


TABLE  OF  CASES. 


4191 


[REFERENCES    ARE   TO   PAGES.] 


Bennett  v.  Cook,  506. 

v.  Cooper,  112. 

v.  Davis,  2880. 

v.Donovan,    3861,    3867. 

v.  Eastchester       Gaslight       Co., 
2296. 

v.  Edison       Elec.       Illuminating 
Co.,  2148,   2149,   2363,   3846. 

v.  Edwards,  1433,  1435. 

v.  Goble,  1900. 

v.  Lake,  3897. 

v.Leeds  Mfg.  Co.,   907,   952. 

v.Matthews,  963,  2198,  2201. 

v.  Morehouse,    3095. 

v.  Mulry,    689,    1151., 

v.  Pratt,    577. 

v.  Stevenson,    3637. 

v.  Taylor,  4015. 

v.  Thompson,  2076,  2083. 

v.  Van   Sychel,    3664. 

v.  Vonder   Bosch,    2147. 

v.  "Watson,  506,  514,   2333. 

v.  Weed,    655,   1948,   1956,    1957. 

v.  Whitney,   716,   921. 

v.  Wolfolk,   3365. 
Benninghoff  v.   Oswell,   1301. 
Benoit  v.  New  York  Cent.   &  H.    R. 

R.    Co.,    40S6,    4163. 
Bensen  v.  Perry,  2841. 
Bensinger   v.   Erhardt,   1837. 
Benson,  In  re,  2699. 
Benson  v.  Berry,  1415. 

v.  City  of  New  York,   1566. 

v.  Eastern   Bldg.    &   Loan  Ass'n, 
348,    1951,    4056. 
Benta  v.  Harris,  2707. 
Bentley  v.   Bentley,    3011. 

v.  Gardner,   2753. 

v.Goodwin,    116,    2890. 

v.  Jones,    617. 
Bently,  Matter  of,   3080. 
Benton  v.  Hatch,  3171,   31S2. 

v.Moore,    4111. 

v.  Winner,    74. 
Berbling  v.  Glaser.  381. 
Berdell  v.   Berdell,   1789,    2793. 

v.  Parkhurst,   2841. 
Berford  v.  Barnes,  143. 

v.  New    York    Iron    Mine.    1000, 
1053. 
Berg  v.   Grant,   1549. 

v.  Parsons,   2296,   3866. 

v.  Pohl,  2172. 
Bergen   v.   Carman,   3137,   3385,  3~611. 

v.  Stewart,  678. 

v.  Wyckoff,   3897. 
Berger   v.    Dubernet,    2654. 
Berger  Mfg.  Co.  v.  Block,  2703. 
Bergh's   Case,    321. 
Bergholtz  v.  Ithaca  St.  Ry.  Co.,  270. 
Bergman   v.   Klein,    4076. 

v.  Noble,  1948,   3204. 
Bergmann   v.   Salmon,   1592,   1600. 
Berkeley   v.   Kennedy,   2870. 
Berkman  v.  Wolf,  1875,  1902. 
Berkowitz  v.   Brown,  461,   462. 
Berks   v.  Hotchkiss,   283. 
Berlin   Iron   Bridge   Co.    v.    Wagner, 
38. 


Berls    v.    Metropolitan    El.    Ry.    Co., 

2627. 
Bermel    v.    Harnischfeger,    4044. 
Bernard   v.   Morrison,    1087. 
Berney  v.  Drexel,  850,  903,  904,  100_6. 
Bernhard  v.   Cohen,    1450. 
Bernhardt  v.  Rensselaer  &  S.  R.  Co., 

2283. 
Bernheim  v.  Bloch,  4165. 
Bernheimer,   Matter    of,    642. 
Bernheimer  v.   Hartmeyer,   971,   978. 

v.  Kelleher,    3337. 

v.  Prince,  207. 

v.  Schmid,    1620,    1645,    1786. 
Bernikow  v.   Pommerantz,    4167. 
Bernsee,   Matter   of,    3862. 
Bernstein  v.  Hamilton,   1860. 

v.  Levy,    2009. 

v.  Schoenfeld,    2791. 
Berrian  v.  City  of  New  York,  527. 

v.  Sanford,   2594,  2644. 
Berrien   v.   "Westervelt,    548. 

v.  Wright,   503. 
Berrigan  v.  Oviatt,   944. 
Berry,  Matter   of,   3781,   3789. 
Berry  v.   Rowley,   943. 
Bertha  Zinc  &  Mineral  Co.  v.  Clute, 

1574. 
Berthold  v.   Wallach,   106. 
Berzevizv  v.  Delaware,  L.   &   W.   R. 

Co.,  2328. 
Besley  v.  Palmer,   1505,  1510. 
Besson  v.   Southard,   2281. 
Best    v.    Davis    Sewing    Mach.    Co., 
502,  503. 

v.  Vedder,    2066. 

v.  Zeh,  61. 
Beste  v.    Berger,   2230. 
Beswick,   Matter  of,   145. 
Betjemann   v.   Brooks,   2558. 
Better  v.  Prudential  Ins.  Co.,  445. 
Bettis   v.   Goodwill,   1991,    1993. 
Betts  v.  Betts,  259,  797,  3000. 

v.  De  Selding,   2084,  2088. 

v.  Garr,    3070,    3071. 

v.  Kridell,   897. 
Betz  v.  Buckel,  3241. 

v.  Daily,    2760. 
Betzemann   v.   Brooks,  1386. 
Beuerlien    v.   O'Leary,    2248. 
Bevans  v.  Pierce,  3305. 
Beveridge   v.   New   York  El.   R.    Co., 

382. 
Bevier  v.  Delaware  &  H.  Canal  Co., 

2247. 
Bevins  v.  Albro,  294,  2905. 
Bewerlin   v.   Hodges,    3998. 
Bewley     v.     Equitable     Life    Assur. 

Soc,   1012,   1038. 
Beyea's  Estate,  Matter  of,  3372. 
Beyer  v.  Clark,   1876,   1878. 

v.  Isaacs,  3862. 

v.  Sigel,   479. 

v.  Wilson,    893,    897. 
Bianchi   v.   Star  Co.,   4093. 
Biays  v.  Merrihew,  1748. 
Bibby  v.  Governeur,   3241. 
Bick   v.   Reese.   2978. 
Bickford  v.   Searlcs,   2927. 


4192 


TABLE  OF  CASES. 


[REFERENCES    ARE   TO   PAGES.] 


Bicknell  v.  Byrnes,  3219,  3222,  3241. 
Biddescomb  v.  Cameron,  2731. 
BIddlecom  v.   Newton,   2289. 
Bldwell  v.  Astor  Mut.  Ins.  Co..  59. 
V.  Overton,   943,  951. 
v.  Sullivan,  951. 
Bieber,  Matter  of,   3047. 
Biegelson  v.   Kahn,  2329. 
Bieling  v.  City  of  Brooklyn,  3612. 
Bien   v.   Freund,   9S0,    982. 
Bier   v.    Ash,    3121. 
Bierce  v.    Smith,   811,   815. 
Biershenk    v.    Stokes,    40,    949,    2754, 

2774. 
Bigelow    v.    Drummond,    4104,    4116. 
v.  Finch,    3139,    3148,    3151. 
v.  Garwitz,   2698. 
v.Hall,   2238. 
v.  Heaton,   635. 
v.  Provost,  3065. 
V.Whitehall  Mfg.  Co.,   891. 
Biggert  v.   Nichols,    3724,   3764. 
Biggnell  v.   Forrest,    1366. 
Biggs  v.   City  of  Geneva,  4086. 
Bigler  v.   Barnes,    3890. 
v.  Duryee,   1797. 
v.  National   Bank  of  Newburgh, 

1915. 
v.  Pinkney,  3961. 
Biglow  v.  Sanders,  4009. 
Bildersee   v.  Aden,    1458,   1506,    1507, 

1512. 
Billhofer   v.      Heubach,     1708,     3392, 

3393. 
Billings  v.  Albright,  955. 
v.  Baker,    2597. 
v.  Carver,   3295. 
v.  Vanderbrek,    2555. 
Billington   v.   Billington,    3267,    3643. 
Bills   v.    National   Park   Bank,   1409, 

1411,   1480,   1482. 
Billwiller  v.  Marks,   1444. 
Binder    v.    Metropolitan    Street    Ry. 

Co.,   663,   1945,   1951. 
Bingham  v.   Bingham,   560,    775,    81b, 
1952. 
v.  Disbrow,  136,  3270,  3277,  3291, 

3314,    3319. 
v.  Sheldon,  4059. 
Binghamton     Opera     House     Co.     v. 

Binghamton,    2679. 
Binghamton  Trust  Co.  v.  Clark,  982, 
1012. 
v.Grant,   3282,   3301,    3801. 
Binney  v.  Le  Gal,   1991. 
Birchell  v.  Strauss,   1289,   1292. 
Birckhead  v.   Brown,    116. 
Bird   v.    Austin,    1638. 
v.  Lanphear,   418. 
v.  Sands,   2598. 
v.  Steamboat    Josephine,    137,    138, 
139. 
Birdsall   v.    Patterson,    2163,    2164. 
v.  Phillips,  3151. 
v.  Pixley,    1857. 
Birdsall  Co.   v.  Ayres,   2557. 
Birdseve   v.    Goddard,    3049. 

v.  Smith,   837. 
Birge    v.    Berlin    Iron    Bridge    Co., 
3873. 


Birkbeck  v.   Stafford,  241. 
Birmingham  v.  Rochester  City  &  B. 

R.  Co..   2281. 
Birmingham  Iron   Foundry   v.   Hat- 
field,  1930,   1940,   1963. 
Birnbaum   v.    Thompson,    3350. 
Bischoff  v.   Bischoff,    4068. 
Bishop    v.    Bishop,    2115,    2626,    2628, 
3049,    3050. 

v.  Earl,  1372. 

v.  Edmiston,   413,   1001. 

v.  Empire  Transp.  Co.,  3685. 

v.  Halsey,   1577. 

v.  Johnson,   1429. 

v.  Van  Yechten,  3999. 
Bissel    v.    Hamlin,    2652,    2663,    2672. 

v.  Payn,  3148. 
Bissell  v.  Dayton,  3027. 

v.  Kip,   3094. 

v.  Mutual  Reserve  Fund  Ass'n, 
1847,    1848. 

v.  New  York  Cent.  &  H.  R.  R. 
Co.,  612,  646,  709,  724,  794, 
2826. 

v.  Russell,   2235. 
Bissing  v.    Smith,    464,    831. 
Bitting  v.   Vandenburgh,    1420,   3269. 
Bixby  v.   Smith,   767,   3236. 
Bixlv   v.   Mead,    3132,    3145. 
Black,  Matter  of.  3224. 
Black   v.    Brooklyn   Heights   R.    Co., 
2663,   3013,  3015. 

v.  Camden  &  A.  R.  &  Transp. 
Co.,    1756,    2237. 

v.  Curry,  1811. 

v.  Foster,    2370. 

v.  Homeopathic  Mut.  Life  Ins. 
Co.;   908. 

v.  Maitland,  4003. 

v.  O'Brien,    2907,    2910. 

v.  Vanderbilt,   1001,   2764. 

v.  White,    2143. 
Blackburn    v.    American    News    Co., 

4121. 
Blackie  v.  Neilson,   863. 
Blackley  v.  Sheldon,   2358,   3121. 
Blackmar  v.  Van  Inwager,  597. 
Blackner  v.   Greene,   2883. 
Blackwell,    Matter    of,    632,    641. 
Blackwell    v.    Bainbridge,    683. 
Blair,   Matter  of.    3729. 
Blair  v.  Lynch,  526,  528. 
Blake  v.  Barnes,  1088,  2757. 

v.  Bernhard,  1450. 

v.  Bolte,   1423. 

v.  Clausen,    488. 

v.  Crowley,  2151. 

v.  Doolan,   1889. 

v.  Eldred,   1069. 

v.  Griswold,  2064,  2065,  2067, 
2102,  3674,   3833. 

v.  Harrigan,  858,  871,  2559,  2561. 

v.  James,  2925. 

v.  Locy,  537. 

v.  Lyon  &  Fellows  Mfg.  Co., 
2591,    3767. 

v.  Michigan  Southern  &  N.  I.  R. 
Co.,   1700,    2921. 

v.  Millspaugh,   2194. 
Blakelee  v.  Buchanan,  1346. 


TABLE  OP  CASES. 


4193 


[references  are  to  pages.] 


Blakely  v.  Weaver,  3207. 
Blanc  v.  Blanc,  1057. 

v.  Tennessee    Coal,     Iron     &    R. 
Co.,   1410. 
Blanchard  v.   Jefferson,   60,   926. 

v.  Reilly,    3291,    3292,    3335. 

v.  Strait,    717,    930. 
Blanck  v.  Nelson,  1335. 

v.  Sadlier,   3237. 

v.  Spies,   2987,    3049. 
Blanco  v.  Foote,  3148. 
Blanding  v.  Cohen,   4159. 
Blank  v.    Hartshorn,   837. 
Blaschko   v.   Wurster.    3621. 
Blashfield   v.    Blashfleld,    2923. 

v.  Empire  State  Tel.   &  Tel.  Co., 
2595,  2601. 

v.   Smith,   2786,    2795. 
Blason  v.  Bruho,  1275,  1319. 
Blaut  v.   Blaut,   4111,  4115,   4125. 

v.  Borchardt,   983,  1004. 
Blauvelt  v.   Powell,    48. 
Blazy  v.  McLean,   3953. 
Bleakley,  Matter  of,  250,  252. 
Bleecker   v.    Storms,    562. 
Bleier  v.   Davidson,    1476. 
Blennerhasset  v.  Stephens,  1798. 
Bliss,  Matter  of,  2585. 
Bliss  v.   Bliss,   2580. 

v.  Fosdick,   3652,    3655,   3977. 

v.Hogg-son,    3795,    3797,    3925. 

v.  Hornthal,   1751. 

v.  Johnson,   461,   462. 

v.  Molter,    679,    1507. 

v.  Otis,    2944. 

v.  Raynor,    1428,   1429. 

v.  Winters,  59,  884. 
Bliss    Co.     v.     Opera    Glass     Supply 

Co.,    1444. 
Blivin   v.    Bleakley,    3119. 
Bloch  v.   Bloch,    4055. 

v.  Linsley,  2973. 
Block  v.  Garfiel,   2010. 

v.  Sherry,    4154. 
Blocker   v.   Guild.    1778. 
Blodget  v.    Blodget,   2817. 
Bloete  v.   Simon,   415. 
Bloodgood  v.  Bruen,  519,   520,  524. 

v.  Clark,  3424. 

v.  Patten,    1810. 

v.  Pond's      Extract      Co.,      1785, 
1799,  1811. 

v.  Slayback,    1805. 
Bloom   v.    Burdick,    136. 

v.  National   United   Ben.    Sav.    & 
Loan    Co.,    2582,    3668,    3718. 
Bloomfield  v.   Ketcham,   33,   36. 

v.  Snowden,   1560. 
Bloomingdale  v.  Adler,   2198. 

v.  Cook,   1442. 

v.  Southern  Nat.  Bank,  2287. 

v.  Steubing,    633,    2908. 
Bloore   v.    Potter,    2630. 
Bloss   v.   Morrison,   2374,    2595,    2600. 
Blossom   v.    Barrett,    1055,    2256. 

v.  Barry,    311,    2795. 

v.  Estes,   1383,    1387,    1388. 

v.  Lycoming  Fire  Ins.  Co.,   2271. 
Blue  v.   Stout,  1373. 
Blum  v.  Bruggemann,   1077. 

N.  Y.  Prac.  —  263. 


Blum  v.  Dabritz,  75,  1021. 
v.  Higgins,    2696. 
v.  Langfeld,    2229,    3867. 
Blumberg  v.  Lindeman,  1841. 
Blumenberg    Press    v.    Mutual    Mer- 
cantile Agency,   3879. 
Blumenfield  v.  Stine,  4105,  4115,  4116. 
Blumenthal  v.  Anderson,  2836. 

v.  Schweinburg,  1689. 
Blumgart  v.  David,  3185. 
Blydenburgh    v.    Cotheal,    696,    3694. 

v.  Northrop,    2795,    2887,    2888. 
Blynn  v.  Smith,  1529,  1647. 
Board  of  Charities,  Matter  of,   18. 
Board   of   Com'rs    of   Charities,    etc., 

v.  Litzen,  795. 
Board    of   Com'rs    of   Excise   v.    Mc- 
Cullough,   1076. 
v.  McGrath,  1894. 
v.  Purdy,    543. 
Board    of    Com'rs    of    Public    Chari- 
ties    &     Corrections     v.     Casiatir, 
1895. 
Board  of  Education,  Matter  of,  3615. 
Board     of     Education     of     City     of 

Brooklyn,  Matter  of,  15. 
Board  of  Health  of  City  of  Yonkers 

v.   Copcutt,   487. 
Board  of  St.  Opening  &  Imp.,  Mat- 
ter of,   39o7,   3963. 
Board  of  Sup'rs  of  Delaware  Coun- 
ty v.   Foote,    115. 
Board  of  Sup'rs  of  Kings  County  v. 

Walter,    479. 
Board  of  Sup'rs  of  Ulster  County  V. 

Brodhead,    276,   279. 
Board    of    Water    Com'rs    v.    Shutts, 

3642. 
Boardman  v.  Fowler,  1366,  1367. 

v.  Lake   Shore   &   M.   S.    Ry.   Co., 
454. 
Boardway  v.  Scott,  2906,  2911. 
Bobb    v.    New    York    Elec.    "Vehicle 

Trans'p.   Co.,   2295. 
Bock   v.   Bohn,    1612,   1613,    1614. 
Bockes  v.  Hathorn,   2930,  3020,   3653. 

v.  Lansing,    1034. 
Bode  v.  Maiberger,   1364,   1367,    1373. 
Bodell  v.  Gibson,  497. 
Bodine   v.    Edwards,    3228,    3409. 

v.  Moore,    3182. 
Bodwell  v.   Willcox,   586. 
Body,  Ex  parte,  3274. 
Boechat  v.   Brown,   3625,   3628. 
Boeck  v.  Smith,   1845. 
Boeger  v.  Hoffman,  1680. 
Boehm  v.  Lies,  2205. 

v.  Miller,   2766. 
Boehringer  v.  Hirsch,   2294. 
Boelger  v.   Swivel,   3330,   3343. 
Bogardus    v.    Metropolitan    St.    Ry. 
Co.,   1067. 
v.  New   York  Life   Ins.   Co.,    852, 

908,   1013. 
v.  Richtmeyer,  277. 
v.  Rosendale      Mfg.      Co.,      3925, 

3963. 
v.  Young,  80,  383. 
Bogart   v.    Dart,    1385.   1393. 
v.  O'Regan,   389. 


4194 


TABLE  OF  CASES. 


[REFERENCES   ARE   TO   PAGES.] 


Bogart  v.  Swezey,  1386,  1387. 
Bogert  v.    Bancroft.    587. 

v.  Bogert,    1837,    3234. 

v.  Furman,    2645. 

v.  Vermilya,    507,    2381. 
Bogert's   Estate,   Matter    of,    3667. 
Bogue  v.  Newcomb,  3862. 
Bohlen  v.  Metropolitan  El.   Ry.   Co., 

23S4. 
Bohm    v.    Metropolitan    El.    R.    Co., 

3875. 
Bohnet  v.   Lithauer,   2658. 
Bohun  v.   Taylor,   2760. 
Boice  v.  Jones,   3899. 
Boington    v.   Lapham,    794. 
Boisnot  v.  Wilson,   2561,   2568. 
Boldt  v.   Epstein,   2291. 

v.  Murray,    2241. 
Bolen  v.   Crosby,    3867. 
Boiler  v.   Boiler,   2778. 

v.  City  of  New  York,   2035. 
Bolles  v.   Cantor,   2079,   3663. 

v.  Duff,    614,    635,    643,   1894. 
Bologna  v.  Metropolitan   St.   R.   Co., 

2694. 
Bolognesi   v.   Hirzel,   866. 
Bolt  v.   Hauser,    3260. 
Bolte  v.   Dieckman,   3958,   3965. 

v.  Third    Avenue "  R.    Co..    2719, 
3859. 

v.  Van    Rooten,    1759. 
Bolton  v.   Corse,  1913. 

v.  Donavan,   3630. 

v.  Schriever,   463,   3001. 
Bommer  v.   American   Spiral  Spring 

Butt  Hinge  Mfg.  Co.,   469. 
Bon  v.  Sanford,  2607. 
Bond  v.  Bond,   2666. 

v.  Smith,    1707,    2071,   2096. 

v.  Willett,    3115-3117,    3119. 
Bondy  v.   Collier,   687,    1328. 
Bonesteel    v.    Flack.    3107. 

v.  Garlinghouse,    921. 

v.  Lynde,    329,    1969,    1980. 

v.  Van    Etten,    485. 
Bonn  v.  Bloch,   1348. 

v.  Steiger,    2379. 
Bonnefond  v.  De  Russev,  2677. 
Bonnell  v.   Griswold,  1013,  3871. 

v.  Henry,   2891. 

v.  Rome,   W.    &   O.    R.   Co..    2063, 
2869. 
Bonner,   Matter  of,   185. 
Bonner  v.  McPhail,   2554,   2580,   2588. 
Bonnett    v.     Townsend,     1907,     3769, 

3770,   4002. 
Boon   v.   City  of  Utica,    3597. 

v.  McGucken,    339. 
Boos  v.  "World  Mut.  L.  Ins.  Co.,  2745. 
Booss  v.  Mihan,  2566. 
Booth,  Matter  of,  1649. 
Booth  v.    Boston   &  A.   R.   Co.,   2316, 
2334,    2348. 

v.  Englert,    4171,    4177. 

v.  Farmers'  &  Mechanics'  Bank, 
63. 

v.  Farmers'    &    Mechanics'    Nat. 
Bank,    18,    2838. 

v.  Fuller,    3386,    3391. 


Booth     v.      Kingsland      Ave.      Bldg. 
Ass'n,   786,   2752. 
v.  Kitchen,   158. 
Bopp    v.    New    York    Elec.    Vehicle 

Transp.   Co.,   4162. 
Borley   v.    Wheeler   &   W.    Mfg.    Co., 

2025. 
Borman  v.  Atlantic  &  Pacific  R.  Co., 
1776,    1831. 
v.  Pierce,    1796. 
Born   v.    Schrenkeisen,    2820,   3904. 
Bornemann,  Matter  of,  106,  286,  664, 

3857. 
Bornstein  v.   Harding,   1320. 
Borrowe    v.    Corbin,    158. 
Borsdorff  v.  Dayton,  2849. 
Borst  v.  Corey,  452. 
Borsuk  v.  Blauner,   4083,  4085,  4124, 

4125. 
Bort  v.  Snell,  396. 
Boscher   v.   Boullier,    1513,   1519. 
Bosley    v.    National    Mach.    Co.,    477, 

495,   2391. 
Bossert    v.    Poerschke,    1033. 
Bossout   v.    Rome,   W.    &   O.    R.    Co., 

2866,    2868,    3926. 
Boston,  Matter  of.   3850. 
Boston  Base  Ball  Ass'n  v.  Brooklyn 

Base  Ball   Club,   1005. 
Boston       Locomotive       Works       v. 

Wright,   893,    896,   898. 
Boston    Marine    Ins.    Co.    v.    Sloco- 

vitch,   2234. 
Boston  Mills  v.  Eull,  968,   2915. 
Boston    Nat.    Bank    v.    Armour.    612, 

883. 
Boston  Woven  Hose  &  Rubber  Co. 

v.   Jackson,    2073. 
Bostwick  v.  Barlow,  26S6. 
v.  Elton,    1575. 
v.  Goetzel,    1355,   1373. 
v.  Menck,  1053,  3365,  3370. 
v.  Scott,   3390. 
v.  Tioga  R.   Co.,    3005. 
Boswell  v.   Ward,    1615. 
Bosworth  v.  Allen,   65. 

v.  Higgins,   30,   1031,   2766. 
Bottom  v.   Chamberlain,   995. 
Boucher   v.    Pia,   1884,    1897. 
Boucicault    v.    Boucicault,    234,    238, 

1297,  1315,   1377. 
Bouden   v.   Long  Acre   Square   Bldg. 

Co.,   4071. 
Boughton  v.  Bank  of  Orleans,  3138. 
v.  Flint,    493. 
v.  Harder,    528. 
v.  Scott,   872. 
Bourdon  v.   Martin,   1649,   2947,  2953. 
Boutel   v.   Owens,    2880,   2881. 
Bouton  v.  Bouton,   2629. 
v.  Hill,    531. 
v.Welch,   2256. 
Bowdish   v.    Briggs,    955. 

v.  Page,  44,  45. 
Bowditch  v.   Salisbury,   125. 
Bowdoin  v.   Coleman,   377. 
Bowe  v.   Arnold,   1494,    3385. 
v.  Brown,    3047. 
v.  Gano,   527. 


TABLE  OF  CASES. 


4195 


[REFERENCES  are  to  pages.] 


Bowe  v.  Knickerbocker  Life  Ins.  Co.. 
2109. 
v.  Wilkins,  9S8,   1472,  1488,   1535, 
3193,  3194. 
Bowen    v.    Becht,    3629. 
v.  Clarke,   1666. 

v.  First  Nat.  Bank,  1394,  1517. 
v.  Irish    Pretayterian    Congrega- 
tion, 3633. 
v.  National    Bank    of    Newport, 

1966,   1967. 
v.  Smidt,  286. 
v.  Stilwell,   556,   558. 
v.  Sweeney,    2726. 
v.  Sweeny,    2974. 
v.  True,   1295. 

v.  Trustees    of    Irish    Presbyte- 
rian  Congregation,   1588. 
v.  Webster,    2381. 
Bowers  v.   Arnoux,   3181. 
v.  Denton,    430. 
V.Male,    4175. 
v.  Smith,  55. 
v.  Tallmadge,    3797. 
Bowery   Bank   v.   Martin,    2141. 

v.  "Widmayer,    3301. 
Bowery   Nat.    Bank  v.    City    of  New 
York,   1867,   2313. 
v.  Duncan,    3425. 
v.  Duryee,    1059,   1348. 
Bowery  Sav.  Bank  v.  Belt,  45. 
v.  Mahler,    13,    1S70. 
v.  Stadmuller,    206. 
Bowghen   v.    Nolan,    895. 
Bowker  Fertilizer  Co.  v.   Cox,    47. 
Bowles    v.    Rome,    W.    &    O.    R.    Co., 
1936. 
v.  Van   Home,    2128,    2129. 
Bowling  Green   Sav.   Bank  v.   Todd, 

284,   291.    292. 
Bowman   v.    Bowe,    1336. 
v.  Earle,   880,   1045. 
v.  Ely,   1938,   1953. 
v.  Gates,   1304,   1335. 
v.  Hoffman,  494. 
v.  Quackenboss,1416. 
v.  Sheldon,     536,     537,     574,     585, 

641,   835,   1069. 
v.    Tallman,  3189. 
Bowman    Cycle    Co.,    Sidney    B.,    v. 

Dyer,    562,    874. 
Bowne  v.  Anthony,  2936. 
v.  Leveridge,    2607. 
v.  O'Brien,    478. 
v.  Witt,  1418. 
Box    Board    &    Lining    Co.    v.    Vin- 

cennes    Paper    Co.,    4132. 
Boyce  v.   Bates,   1901,   1908. 

v.  Brown,   821,   824,   826,    918. 
v.  City    of    St.    Louis,    117. 
v.  Comstock,    2559. 
v.  Wight,    3180,    3181. 
Boyd  v.  Boyd,  50,   2143,   2732. 
v.  Cronkrite,  2723. 
v.  Daily,    4059,    4060. 
v.  Dunlap,    3427. 
v.  Elias,    1798. 
v.  Foot,    973. 

v.  Gorman,   148,    3623,   3624. 
v.  Howden,   360. 


Boyd  v.  McDonald,  965. 

v.  Miller,    1450. 

v.  United  States  Mortg.  &  Trust 
Co.,   4078,    4090,   4149. 

v.  Weeks,    585. 

v.  Vanderkemp,    3065. 
Boyer    v.    Brown,    2666. 

v.  East,   3225. 

v.  Fenn,   955,  1343. 
Boyes  v.  Bossard,  1733. 
Boyle  v.   Boyle,    296. 

v.  Consolidated  Gas  Co.,    4143. 

v.  New  York,  L.  E.  &  W.  R.  Co., 
3919. 

v.  Standard   Oil    Co.,    4081. 

v.  Staten    Island    &    S.    B.    Land 
Co.,    1694,    1699. 

v.  Thurber,   2067. 
Boyle  &  Everts   Co.  v.   Fox,   1051. 
Boylem    v.    McAvoy,    612. 
Boylen   v.  McAvoy,    2041. 
Boynton  v.  Boynton,  131,  1968,   2216. 

v.  Keeseville    Electric    Light    & 
Power  Co.,   S12. 

v.  Rawson,    3420. 

v.  Seibert,    3364. 

v.  Sprague,    3372. 
Bracken  v.  Atlantic   Trust  Co.,    954. 
Bracket  v.   Alvord,   360. 
Brackett  v.  Dudley,   1735. 

v.  Griswold,    1898,   2067,   2071. 

v.Miller,    3176. 

v.  Watkins,   1417,   1429. 
Bradbury     v.     Winterbottom,     1704, 

1705. 
Bradley,  Matter  of,   519. 
Bradley     v.     Albemarle     Fertilizing 
Co.,   2850. 

v.  Aldrich,    62,    2146,    2764. 

v.  Bishop,    1372. 

v.  Bradley.    69. 

v.  Fay,  2991.   2993. 

v.  Glass,   2883,    28S6. 

v.  Leahy,    3238. 

v.  McLaughlin,    2601,    2618. 

v.  Mirick,    2243. 

v.  Second  Ave.   R.   Co.,   2287. 

v.  Shafer,    1036. 

v.  Sheehy,   1039. 

v.  Van    Buren,    2946. 

v.  Walker,  3009,  3013. 
Bradley  Salt  Co.  v.  Keating,   1921. 

v.  Meinhold,    4041. 
Bradley   &   Currier  Co.   v.  Harrison, 

1807. 
Bradner,  Matter  of,  1981,  3950. 
Bradner  v.   Holland,   998. 

v.  Howard,   2917. 
Bradstreet   v.    Bradstreet,    1066. 

v.  Clarke,  462. 
Brady,   Matter    of,    179,    3639. 
Brady  v.  Bissell,  1321. 

v.  Brundage,    1362. 

v.  Cassidy,    2312,   2321. 

v.  City  of  New  York,   3039. 

v.  Cockran,   2146,   2147,  2164. 

v.  Donnelly,   3669. 

v.  Durbrow,    2916. 

v.  Hutkoff,   912. 

v.  Industrial  Ben.  Ass'n,  2707. 


4100 


TABLE  OF  CASES. 

[REFERENCES   AKE  TO  PAGES.] 


„„(    ,,„-  .Bresnehan  v.  Darrin  ,1291. 

Brady  V.   Kennedy,  258*,  2586.  Co    I  Brett  v.   Brown    731,  732,  812 

v  Kinetescope     bxtiiuiuiiB  ^  v.  Browne,    328b. 

1689.  v.  First     Universalist      S 


1689-,        i     1247 
v.Kingsland,   3247. 

v.  McCosker,  2089. 

v  Martin,   2035. 

v.  Nally,  1036. 

v.  Powers,  3799. 

v.  Valentine,    27 W. 
Bragelman  v.  Berdmg    S05, 
Brainard  v.  Hanford    662. 

v.Jones,   411,   998. 
Brainerd  v.  Bertram    418 
v-Pe  Graef    2958    295^ 


v.  Dunning,   1544,   3194-?(U9 

v  Hevdrick,   765, . 772,   2043 

Rrais'ted  v.   Johnson.   269.  I  Brewster,  iviatier   ul,   » 

S    Matter  of,    605.  Brewster  v.   Bates,   507 

Iranagan    v.    Long    Island    B.  Co.,             y_  City  of  Hornells 

Brana0an  v.  Hodges,  1569. 


v.Browne,    oiz>».  . 

v  First      Universalist      Soc.      oi 
Brooklyn,    404 
Bretz  v.  City  of  New  York    832 
Breunich  v.  Weselman,   845    1036. 

v.  Weselmann,    911,    104Z 
Brevoort     v.     Warner.     1827.     18.51, 

1837,    2936 
Brevort  v.   Sayre,   287- 
Brewer  v.  Brewer,  3001. 
'     v.  Califf,   4022. 

v.Knapp,  748,    <  49. 
v.  Press   Pub.    Co.    1741. 
v.  Temple,  67,  69. 
v.Tucker,  1433    1514    1525. 
Brewster,  Matter   of,   253. 
i; „*^,.   v     Rnles.    507. 


v.     Bridgraan, 


2365,    2367. 
v.  Palmer,  2935. 
lrard\V-Board1e^tCon3d3Jn4sed  Milk 

Co.,    415S. 
V  Godwin,    3704. 
Brandon     Mfg.     Co. 

v.  Pettingill,  714. 

v  Ogden,    lbi4. 

v.  Siedler     75. 
Brant  v.  Fowler    2,00 
■Rrantingham  v.  Fay,   6hJo 
Sh  v°  Wielarsky,  14o3. 

Brasier,  Matter  of,   2901- 

Brass.v.  Rathhone^  lob2.  ^ 

Brassington     v.     £toni=>, 

2935,    3948 
irfuerVoceanfc' Steam  Nav.   Co., 
B  878     2^42,    3634,    4107 
Braumann   v.   Vanderpoel.    .013. 

Brayton^  New  York,  U  *  *  W. 

v  Sherman,    3866. 
^ZFUMS?*    Hornb*.    20.2, 

4036,   4038. 
Brazill  v.  Isham    954.  2620) 

Breckenridge    Co.    v.    i-er^m 

BrlldV27Buoff    3610     3612 

BreTMVet|P?Uan12iife     Ins. 

g3K"rfcgra  i°e9w-  York,    504 

Br5eichbell   V.   Powles     3646. 
Breiman  v.  Baasch.    1280 
Brein  v.  Bight    1649     333o,   337b. 
Brenen  v.  North    769,   776    290o. 
Brennan  v.  Arnstein,  683,  6S9. 

v.  Gale,   2568. 

v.Hall,   433. 

V.Thompson,    4077. 
Brenner,  Matter  of.   3616. 


vster  v.   Bates,   50<. 

v  City   of  Hornellsville,    299 1. 

v.  Hodges,   1569.  5 

v  Michigan  Cent.  R.  Co.,  13b. 

v.  Power,    2799. 

v.  Sackett,    870. 

v.  Salomon,    1319. 

v.   Stewart,    1692     1698 

v.Van   Camp,   1435     1520. 

V.  Wooster,    1907     3842. 
Brian   v.  Williams,   2567. 
Briasco   v.    Lawrence,   194b. 

Bridge    v.    Payson     964,    1083. 
Brien  v.   Casey,   785. 
B^Vnon,    2362,    .IM.    2768. 

t!  I'own.   "20,    3762. 

sssntft  sit  un.  im. 

v.  Smith,   2330. 
v.Taylor,   1720. 

v:?alXSnO,n,22808;      2370,      2667, 
3SS5. 
Brigham  v.  Bush,  1419. 
v.  Gott,    2150. 

Bright^nlthfeUc   Club   v.   McAdoo, 

Br4ig3noli  v.  Chicago  &  G.  E.  By.  Co., 

2324. 


v.  Metropolitan     Life     ins.  31Q6 

V'B°5Slt4W,2C1ki2.1"'="  ' 


v.Farias,    3018. 
Brink  v.  Home  Ins.  Co.,   1936- 

v  Republic  Ins.   Co.,   2147,   ^»»»  '► 
2581,   2582. 

v.  Stratton,   2247,   2255,   2261. 
Brinker   v.   Loomis,    2956. 
Brinkerhoff  v.  BrinkerhoTf,   989. 

v  Brown,    3394. 

V.Marvin,    2880. 

v.Perry,   840,    848,   3633. 


TABLE  OF  CASES. 


4197 


[references  are  to  pages.] 


Brinkley     v.     Brinkley,     2159,     2162, 

2163,  2383,   3640. 
Brisban   v.   Hoyt,    1735. 
Brisbane   v.   Peabody,    77S. 
Bristed   v.   Harrell,    696,    3911. 
Bristol  v.  Sears,  2231. 
Brittan  v.  Peabody,   563,   1959. 
Brittingham    v.    Brittingham,    1326. 

v.  Stevens,  2644. 
Britton,   Estate   of,   410. 
Britton  v.  Bohde,  431. 

v.  Richards,   12S0. 
Broadbelt  v.  Loew,   2705. 
Broadhead   v.    McConnell,    1331. 
Broad    St.    Nat.     Bank    v.     Sinclair, 

1781. 
Broadway  Bank  v.  Danforth,   915. 
Broadway  Widening,  Matter  of,  171. 
Broadway   &   7th  Ave.    R.   Co.,   Mat- 
ter of,    15,    3642. 
Brock  v.    Barnes,    255,   3S7. 

v.  Surpless,    1832. 
Brockman    v.    Metropolitan    St.    Ry. 

Co.,    2330. 
Brockway  v.   Brien,   3339. 
Broderick    v.    Archibald.    3331. 
Brodhead  v.  Brodhead,   940. 

v.  Stanton,   1948. 
Brodie  v.   Cronley,  1584. 
Brodner,   Matter  of,   1349. 
Brokaw    v.    Bridgman,    1739. 

v.  Culver,    1806. 
Bronk  v.  Conklin,  654. 

v.  Riley,    1563. 
Bronner   v.    Frauenthal,    1727. 

v.  Loomis,   625,   2802.   2804. 
Bronner   Brick   Co.   v.   M.   M.   Canda 

Co.,   959. 
Bronson,  Matter  of,   1801. 
Bronson   V.   Earl,    1332. 

v.  Freeman,    1901,    1904. 

v.  Munson,    491. 

v.  New   York   Cent.    &   H.    R.   R. 
Co.,    2720. 

v.  Noyes,   1356. 

v.  Tuthill,    2690. 
Brooke  v.  Foster,   1476. 

v.  Saylor,   771,   773. 

v.  Tradesmen's  Nat.  Bank,   2724. 
Brooker  v.   Filkins,   2307,   3847. 
Brookline  Nat.   Bank  v.   Moers,   965, 

966. 
Brooklyn,  Matter  of,  2901,   3005. 
Brooklyn   Bank  v.   De   Grauw,   2010. 
Brooklyn  Bar  Ass'n,  Matter  of,  4059. 
Brooklyn  Cent.  &  J.  R.  Co.  v.  Brook- 
lyn City  R.   Co.,   1562. 
Brooklyn  El.  R.  Co.,  Matter  of,  1919. 
Brooklyn    El.    R.    Co.     v.    Brooklyn 

Bath  W.  E.   R.  Co.,   2160. 
Brooklyn  Heights   R.   Co.  v.   Brook- 
lyn  City   R.   Co.,    4157,   4166. 
Brooklyn     Oil     Refinery    v.     Brown, 

2284. 
Brooklyn  Oil  Works  v.  Brown,  2028, 

2029. 
Brooklyn     Sugar     Refining     Co.     v. 

Earle,    980. 
Brooklyn   Trust  Co.  v.   Bulmer,   780. 


Brooklyn   Union    El.    R.    Co.,   Matter 

of,    2969,    3621. 
Brooklyn    &    B.    B.    R.    Co.    v.    Reid, 

2149. 
Brookman  v.  Hamill,  138. 
Brooks   v.   Baker.   1767. 

v.  City  of  New  York,   1040. 

v.  Farmers'  Creamery  Ass'n, 
888. 

v.  Hanchett,   940,   1065,   1069. 

v.  Hathaway,   1419,    1429. 

v.  Higby,   3854. 

v.  Mexican  Nat.   Const.   Co.,   816. 

v.Mortimer,    1045,    1995,    1998. 

v.  New  York  &  G.  L.  R.  Co.,  814. 

v.  Patterson,   247,   1308. 

v.  Rochester  Ry.  Co.,  56,  2249, 
2302,    2699,    2709. 

v.  Schultz,   5S1,   582.   1763. 

v.  Steen,   2331,  2332. 

v.  Stone,   1568,   3421. 

v.  Wilson,   2797,   2798,   3387. 
Broome   v.    Cochran,    1279,    3200. 

v.  Taylor,  854,  855,  2760. 
Brophy  v.   Rodgers,   1297,   1319. 
Bross   v.    Nicholson,    661. 
Brotherson   v.    Consalus,    264,    265. 
Brotherton  v.   Downey,   952. 
Brower  v.   Brooks,   573. 

v.  Huested,   352. 

v.  Kahn,   817. 

v.  Kingsley,    2613. 
Brown   v.   Ashbough,   1275,   1289. 

v.  Bache,   360. 

v.  Barker,   3390. 

v.  Barse,    2251,    2253. 

v.  Beckmann,    2S13. 

v.  Betts,   3151,   3159. 

v.  Bradshaw,    2576. 

v.  Briggs,    660,    663. 

v.  Bronson,  4077,  4078. 

v.Brown,  232,  443,  782,  2156, 
2582,  3663. 

v.  Buckingham,    978,   986. 

v.  Butler,    2592. 

v.  Cassady,    4029. 

v.  Champlin,   825. 

v.  Cherry,    389. 

v.  City  of  New  York,  123,  201, 
289,  293,  307,  2027,  2242, 
2274,   3668,   3686. 

v.  Colie,    2600. 

v.  Cook,  82,  665. 

v.  Crabb,   2799. 

v.  Davis,    1421. 

v.  Evans,  3981. 

v.  Farmers'  Loan  &  Trust  Co., 
3023. 

v.  Ferguson,   2008,    3028. 

v.  Fish,  4101,  4126. 

v.  Fishel,    2665. 

v.  Fleeter,  3192. 

v.  Frost,  3223,  3229,  3231. 

v.  Gallaudet,  51,  986. 

v.  Georgi,  655,  1836,  1837.  3603, 
3648. 

v.  Gilmore,   3262. 

v.  Gray,  138. 

v.  Gump,   3277,  3291. 


4198 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


Brown  v.  Guthrie,  1493,  1531. 

v.  Hardie,    2654,    2812. 

v    Harmon,    1093. 

v.  Hoburger,   2691. 

V.  Huber,    4174. 

v.  Interurban    St.    R.    Co..    2250, 
4159. 

v.  James,  2664. 

v.  Jenison,  1071. 

v.  Keogh,   543,   1449. 

v.  Kimball,    1755,    1769. 

v.  Knapp,    129. 

v.  Leary,   3626. 

v.  Lehigh,    3923. 

V.  Leigh,    1024,    3952. 

v.  Littleneld,    1967. 

V.  Marrigold,   790. 

v.  Maston,    562. 

v.  Mav,    1058,    1918,    2963. 

v.  Miller,   2574. 

V.  Moran,    2027. 

v.  Morgan,    3411. 

v.  Mount,    3233. 

v.  New  York  Cent.   R.  Co.,   2644. 

v.  Niagara   Mach.    Co.,    4024. 

v.Nichols,    2819,    3420. 

V.  Northrup,   1626. 

v.  Richardson,   842,   1060,   3654. 

v.  Ricketts,   577. 

v.  Rickets,  2928. 

v.  Root  Mfg.  Co.,  2557. 

v.  Russell,  1734. 

v.  Ryckman,    846,   959. 

v.  St.  John,   562. 

v.  Saratoga  R.   Co.,  1013,   1092, 

v.  Sears,   2984,    3048. 

v.  Simmons,    3839. 

v.  Smith,   357. 

v.  Snell,    110,   194. 

v.  Southern   Mich.    R.   Co.,   839. 

v.  Story,   1877,   1SS0. 

v.  Tausick,    2206. 

v.  Third  Ave.   R.  Co.,  2266,   2336. 

v.  Thorley,    S77. 

v.  Tracy,  1016. 

v.  Travellers'    Life    &    Accident 
Ins.  Co.,   271. 

v.  Van    Duzen,    1373. 

v.  Walker,   3280. 

v.  Wigton,    1518. 

v.  Williams,    878. 

v.  Windmuller,  2984,  3030. 
Brown's  Will,  Matter  of,  3375. 
Browne  v.  Murdock,  2163,  2692,  2942. 

v.  Stecher  Lithographic  Co.,  914, 
1037,  1047. 

v.  Taylor,    3848. 

v.  Town  of  Mt.  Hope,  1958. 

v.  West,    263,   264. 
Brownell   v.    Carnley,   1414,    1468. 

v.  McEwen,    2735. 

v.  Marsh,    562. 

v.  National     Bank     of     Glovers- 
ville,    839,    1839,    3633. 

v.  Rushman,   2877. 

v.  Town    of   Greenwich,    35,    852. 
Brownelow   v.    Forbes,    1364. 
Browning   v.   Abrams,   1301. 

v.  Bettis,    3400. 


Browning  v.  Chadwick,  3306. 

v.  Goldman,    296S. 

v.  Hayes,    3292. 

v.  Marvin,    264,    25S9. 

v.  New  York,  L.  E.  &  W.  R.  Co., 
2923. 
Brozek    v.    Steinway   Ry.    Co.,    2346, 

2370. 
Bruce  v.   Burr,   845,  964. 

v.  Davenport,   3916. 

v.  Delaware     &     H.     Canal     Co., 
1557,    1563,    1596. 

v.  Kelly,    58,    62,    3145. 

v.  Tilson,    472,    502. 

v.  Westervelt,  3130,  3132,  3143. 

v.  Wyatt,    1277. 
Bruen  v.   Adams,   562. 

v.  Manhattan  R.  Co.,  2909. 

v.  Nickels,    3287. 

v.  Whitman  Co.,   4144. 
Bruggemann  v.  Bank  of  Metropolis, 

1863. 
Brummer  v.    Cohen,    1S43. 
Brumskill   v.   James.    1759. 
Brundage  v.  Munger,   3400. 

v.  Village  of  Portchester,   500. 
Bruni,   Matter   of,    145. 
Brunnemer    v.    Cook    &   Bernheimer 

Co.,    2239,    3371,    3863,    3866. 
Brunner  v.  Kaempfer,   2772. 
Bruns    v.    Brooklyn    Citizen,    4122. 
Brunor,   Matter  of,   3991. 

v.  Kane,   3259. 

v.  Stewart   Mfg.    Co.,    1639. 
Brush   v.   Anderson,    1831. 

v.  Barrett,    491. 

v.  Blot,  964,  2676,  26S0,  3844. 

v.  Hoar,  2S43. 

v.  Jay,  1643. 

v.  Kelsey,  3049. 

v.  Kohn,  2364. 

v.  Lee,  241,  3337. 

v.  Mullany,  2630. 

v.Mullen,  1281. 

v.  Shuster,    3232. 

v.  Vandenbergh,    1598. 
Brusie  v.   Peck,    1039. 

v.  Peck   Bros.   &  Co.,    2210,   2327, 
276S. 
Brusie   v.   Gilmer,   1990. 
Bruss    v.    Metropolitan    St.    R.    Co., 

3870. 
Bruxey  v.  Burke,  1669. 
Bryan,  Matter  of,   1776,  1794. 
Bryan   v.   Grant,    2077,   3350. 

v.  Olsen,    2273,    2275. 

v.  Smith,    1412,    1485,   3114. 

v.  University    Pub.    Co.,    764. 
Bryant  v.  Allen,  3802. 

v.  Bryant,   1076. 

v.  Grant,    3254,    3365. 

v.  Thompson,     3608,     3650,     3655, 
3841,  3855,  3977. 
Bryar  v.   Willcocks,   522. 
Bryce  v.  Meyer,   2319. 
Bryer  v.  Foerster,   3076,    3426. 
Brvon  v.  Durrie,   2121,   2996. 
Buchan    v.    Sumner,    705,    2791,    2797. 
Buchanan   v.   Comstock,    1059. 


TABLE  OP  CASES. 


4199 


[REFERENCES   ARE   TO   PAGES.] 


Buchanan  v.  Hunt,  3330. 

v.  Morrell,  2919. 

v.  Prospect  Park  Hotel  Co.,  743. 

v.  Tilden,   383. 
Buchanan    Farm    Oil    Co.    v.    "Wood- 
man,  1287,   1321,   1322. 
Buchholz  v.  Buchholz,   78. 
Buchner  v.   Tamsen,   1549. 
Bucholtz  v.  Florida  East  Coast  Ry. 

Co.,  2571. 
Buck  v.  City  of  Lockport,  3957. 

v.  Remsen,    2370,    2809,    3594. 

v.  Webb,  2743. 
Buckhout  v.  Hunt,  2957. 

v.  Rail,    182,   184. 
Bucki  v.  Bucki,  3257,  3287,  3299. 
Bucking  v.   Hauselt,   2754,   2774. 
Buckingham   v.    Dickinson,    3932. 

v.  Swezey,   1385,   1407. 

v.  White,  1501. 
Buckland  v.  Gallup,  2950. 
Buckley,  Matter  of,  3975. 
Buckley  v.  Buckley,   273. 

v.  Harrison,  1011. 
Bucklin   v.    Bucklin,    485,    502. 

v.  Buffalo    A.     &    R.     Co.,     4085, 
4117. 

v.  Chapin,    123. 

v.  Ford,    451,    502. 

v.  Westchester      Lighting      Co., 
3862,  4160,  4164. 
Buckman-  v.   Brett,   2093. 
Budd  v.   Bingham,   1085. 

v.  Hardenbergh,   1047. 

v.  Howard  Thomas  Co.,  4113. 

v.  Jackson,   1993,  1999. 

v.  Munroe,   2931. 

v.  Smales,    3017. 

v.  Walker,    443. 
Buddington  v.  Davis,  821. 
Bueb  v.   Geratv,  3917,   .-J969. 
Buel   v.   Baltimore   &  O.    S.    Ry.   Co., 
128,    745. 

v.  Dewey,    2111. 
Buell   v.   Gay,    2942. 

v.  Hollins,   177,    1685,    3635,   3893. 

v.  Van     Camp,     542,     1434,     1435, 
1436,    1443,    1524. 

v.  Village   of  Lockport,    3872. 
Buermann  v.  Buermann,  89. 
Buess  v.   Koch,   927. 
Buffalo,  Matter  of,  2823,  2827. 
Buffalo     Catholic     Inst.     v.     Bitter, 

1013. 
Buffalo  Chemical  Works  v.  Bank  of 

Commerce,    1623,    1624. 
Buffalo    German    Ins.    Co.    v.    Third 

Nat.  Bank  of  Buffalo,   117. 
Buffalo  Ice  Co.  v.  Cook,   2741. 
Buffalo  Structural  Steel  Co.  v.  Dick- 
inson,   2702,    4158. 
Buffalo  &  Grand  Island  Ferry  Co.  v. 

Allen,    1029. 
Buffalo    &   L.    Land   Co.    v.    Bellevue 

Land    &   Imp.    Co.,    3881. 
Buffum  v.  Forster,  1423,  3190. 
Buhl  v.  Ball,  1403,   1444,  1525. 
Buhler  v.  Wentworth,  845. 
Buker  v.  Leighton  Lea  Ass'n,  3917. 


Bulen  v.  Burdell,  1039. 
Bulger  v.  Coyne,  1009. 

v.  Rosa,  1994. 
Bulkeley     v.     Keteltas,     2034,     2336, 

3781. 
Bulkin  v.  Ehret,  2707,  2709,  2744. 
Bulkley  v.  Back,  3043. 

v.  Bulkley,  59S,  735,  784. 

v.  Colton,  1364. 

v.  Gutta   Percha   &    Rubber   Co., 
1896,  1897. 

v.  Marks,  2360. 
Bull  v.  Case,  1424. 

v.  Kendrick,  1751. 

v.  Melliss,  611,  1288,  3203. 

v.  Rothschild,  1054. 
Bullard  v.  Kenyon,  3650. 

v.  Pearsall,  2253,  3948. 

v.  Sherwood,     2852,     2855,     2860, 
2870. 

v.  Spoor,  2043. 
Bullion  v.  Bullion,   176. 
Bullock  v.  Bemis,  1037,  2597. 

v.  Bullock,  870,  872. 
Bullwinker  v.  Rvker,  2763. 
Bump  v.  New  York,   N.  H.   &  H.   R. 
Co.,  2341. 

v.  Piercy,  2822. 
Bumpus  v.  Maynard,  1418. 
Bunacleugh  v.  Poolman,  3350. 
Bunce  v.  Reed,  547,  652,  697,  790. 
Bundick  v.  Hale,   2916. 
Bunge  v.  Koop,  904. 
Bunker  v.  Langs,  1090. 
Bunn  v.  Croul.   2340. 

v.  Daly,  3351. 

v.  Fonda,  1416. 

v.  Hoyt,  2359,  2708. 
Bunnell  v.  Gardner,  3404. 
Bunten  v.  Orient  Mut.  Ins.  Co.,  2756, 

2773. 
Burbank  v.  Beach,  390. 
Burch  v.  Newbury,  3666. 

v.  Spencer,  4032. 
Burchard,  Matter  of,  240,  253. 
Burchell  v.  Green,  3107. 

v.  Voorhis,    3229. 
Burd,  Matter  of,  250. 
Burdell   v.   Burdell,    1625,    1S14. 
Burden   v.   Pratt,    2242. 
Burdett  v.  Lowe,   3733. 
Burdick  v.  Chesebrough,  4091. 

v.   Freeman.    131,   2319. 

v.  Hale,    2902. 

v.  Hicks,    497,    527. 
Burdon  v.  Martin,  1649. 
Burger  v.  Baker,   2175,   2381,  2S67. 

v.  Burger,    3987,    3988. 
Burgess   v.   House,    1703. 

v.  New    York    Cent.    &   H.    R.    R. 
Co.,  2260. 

v.  Stitt,    536. 
Burgett  v.  Fancher,  1423. 
Burghart  v.    Gardner,    266. 
Burhans  v.  Blanchard,  2992. 

v.  Tibbitts,    2364,    2366,    2908. 
Burk  v.  Ayers,   3857. 
Burke  v.  Ashley,  854. 

v.  Baker,    I  i  66. 

v.  Burke,  3272,  3277. 


1:200 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Burke  v.  Candee,  3016. 

v.  Frenkel,   4068,  4096,   4152. 

v.  Phillips,  291S. 

v.  Uhoads,    4106,    4122. 
Burkert  v.  Bennett,  949,   959. 
Burkham  v.   Van  Saun,   2Ssn. 
Burkhardt  v.   McClellan,   1482. 

v.  Sanford,    1481,    3191. 
Burkle  v.   Luce,   3088. 
Burlev    v.    German-American    Bank, 

1064. 
Burling  v.  Gunther,  2318,  2319. 
Burlingame  v.    Parce,    1916. 
Burnell    v.    Coles,    1751,    3634,    2954, 
395S. 

v.  Johnson,  1477. 

v.  Weld,  27S9. 
Burnet  v.  Kelly,  2909. 
Burnett,    Matter   of,    3975. 
Burnett  v.  Burnett,  2777,  4110. 

v.  Gould,    3389. 

v.  Harkness,    3839,    3S40. 

v.Mitchell,   1798. 

v.  Noble,    531. 

v.  Phalon,   2232,   2600. 

v.  Riker,    3326. 

v.  Snyder,  528,   2578. 

v.  Westfall,      1992,      1998,      2904, 
2990. 
Burnham,  Matter  of,  3801. 
Burnham  v.   Brennan,   2071,   31S6. 

v.  Burnham,    473,    504. 

v.  Denike.    2385,    3683. 

v.  Franklin,   4125. 

v.  Thurman,   2215. 
Burns  v.  Boland,   1319. 

v.  Delaware,    L.    &    W.    R.    Co., 
2922,  2965,  2978,   2985. 

v.  O'Neil,   908. 

v.  "Walsh,    1029. 
Burnside  v.   Matthews,    95S. 
Burr  v.  Sears,  1801. 

v.  Union     Surety    &    Guar.     Co., 
4111. 
Burrall  v.  Acker,   1477. 

v.  Bowen,  1081. 

v.  Jewett,    140,    143. 

v.  Moore,    1047,    1073. 

v.  Vanderbilt,    2803. 
Burrell   v.   Hollands,    3088,   3101. 

v.  Preston,    481,    482. 
Burrill   v.   Jewett.   1396. 

v.  Watertown  Bank  &  Loan  Co., 
1757,  1765. 
Burritt  v.  Koster,  Bial  &  Co.,  1783. 

v.  Press  Pub.   Co.,   1860,   1801. 
Burroughs  v.   Strauss,   2246. 

v.  Tostevan,   73. 
Burrows  v.   Butler,   3036. 

V.Dickinson,    2630-2632. 

v.  Miller,    1395. 

v.Norton,    3719,    3999. 

v.  Oneida  Community,  1791. 
Burt  v.  Lustig,   688. 

v.  Mvers,  439,  494. 

v.  Nafls,    3566. 

v.  Powis,   116. 
Burtis  v.  Dickinson,  1496,  1514,  2890. 
Burton  v.   Burton,  734,   2074. 

v.Linn,    3240,    3241. 

v.  Tremper,    3019. 

v.  Wheeler   &   Wilson    Mfg.    Co., 
4032,  4033. 
Bush   v.   Abrahams,    206,   1695. 

v.  Barnard,  523,  524. 


Bush  v.  Dennison,  4000. 

v.  O'Brien,   270,   1053,    3005,   3023, 
3659,  3856. 

v.  Pettibone,    1307,   3211. 

v.  Prosser,   821,   962. 

v.  Robbins,   1443. 

v.  Treadwell,   349,   352. 

v.  Weeks,   2028. 

v.  White,  3264. 
Bushnell  v.   Bushnell,   1296. 

v.  Chautauqua        County        Nat. 
Bank,    85,    2931. 

v.  Durant,   1936. 
Buskirk   v.   Cleveland,    3113. 
Bussey  &  McLeod  Stove  Co.  v.  Wil- 

kins,  3199. 
Bussing    v.    Thompson,     1285,    1287, 

1290. 
Buswell  v.   Lincks,  3391,   3411. 
Butcher   v.    Pearson.    1495. 
Butchers'    &    Drovers'    Bank   v.    Ja- 
cobson,   2968. 

v.  Willis,   3396. 
Butez  v.  Fonda,  J.  &  G.  R.  Co.,  2689. 
Butler,   Matter   of,    2104,    2105,    2106. 
Butler     v.     Baudouine,     3390,     3403, 
3412. 

v.  Boston  &  A.  R.  Co.,   2951. 

v.  Butler,    4134. 

v.  Clark,   3159. 

V.  Flanders,    1755,   1762,   2244. 

v.  General     Ace.     Assur.     Corp., 
4109,   4115. 

v.  Glens  Falls,  S.  H.  &  Ft.  F.  St. 
R.   Co.,   2189,   2193,    2199. 

v.  Jarvis,    3743. 

V.Johnson,   440,  454,   471,  519. 

v.  Kelsev,    105.    2864. 

v.  Lee,    1741. 

v.  Mann,    863. 

v.  Mason.   925. 

v.  Mavnard.    3102,    3117. 

v.  Miller,  44.  28S9. 

v.  Morris,   2117,   2933. 

v.  New  York  &  E.  R.  Co..  37S. 

v.  Niles,    3305. 

v.  Rochester,  2940. 

v.  Smalley,   72. 

v.  Supreme     Council     A.     L.     H., 
4073. 

v.  Supreme       Council       Catholic 
Benev.   Legion,    2293. 

v.  Viele,   828,   3409,   3410. 

v.Walsh,    2379. 
Butterfleld  v.   Bennett,    2.82,   632. 

v.  Radde,   3704.    3835 
Butterly   v.    Deering,    4157. 
Butterworth  v.  Boutilier,  537,  546. 

v.  Stagg.    326. 
Buttery    v.    Rome,    W.    &    O.    R.    Co., 

459. 
Button  v.  Kinnetz,   2665. 

v.  McCauley,  2220. 

v.  Schuyler's     Steam     Tow-Boat 
Line,   1033. 
Buttron  v.  Tibbits,  3244. 
Butts  v.  Burnett,  640,  645. 

v.  Collins,   1477. 

v.  Village  of  Lowville,  2234. 
Buyce  v.  Buyce,  920. 
Bvam  v.   Stevens,  334. 
Bvass  v.    Sullivan,    2234. 
Byrne  v.  Brooklyn  City  &  N.  R.  Co., 
2970,  2977. 

v.  Groot,   2987,   304S. 


TABLE  OF  CASES. 


4201 


[REFERENCES   ABE   TO   PAGES.] 


Byrne  v.  Van  Dolsen,  1780. 
Byrnes  v.   Baer,   3964. 

v.  Byrnes,    2253.    3866. 

v.  City    of   Cohoes,    22S9.    2290. 

v.  Labagh,   17,   2962,   395S. 

v.  Ladew,   1781. 

v.  Palmer,   2730. 

v.  Robinson,   1478. 
Byxbie  v.   Wood,    30,   378,   2071. 


Cable  Flax  Mills  v.  Early,  2616. 

Cabre  v.  Sturges,   4013. 

Caccavo   v.    Rome.   W.    &   O.    R.    Co., 

1S92. 
Cadmus  v.  Oaklev,   1734. 
Cadwell  v.  Arnheim,   2285,   2288. 
v.  Colgate,   1458,    1506. 
v.  Goodenough,    872.    879. 
Cady    v.    Edmonds,    1344. 
Cafferty    v.    Keeler.    2644. 
Caflero   v.   Demartino,    1361. 
Cagger   v.    Gardner.    2S25. 
v.  Howard,  162S. 
v.  Lansing,    3594. 
Cagliostro  v.   Corporate,   2013. 
Cagney  v.   Fisher,   609,   1591,   2028. 
Cahen   v.   Continental   Life   Ins.   Co., 

925. 
Cahill  v.  Cahill,  294. 

v.  City  of  New  York,   2977. 
v.  Hilton,    2027,    2033.    2171. 
v.  Lilienthal,   3915. 
v.  Manhattan  Ry.  Co.,  1S74,  1879. 
v.  Palmer,   833. 
Cahill    Iron    Works    v.    Pemberton, 

3858. 
Cahn  v.  Cahn.   1817. 
Cahoon  v.   Bank  of  Utica,   60. 
Cain  v.   Ingham,  2703. 
Caines  v.  Brown,  613. 
Cairns  v.  Smith.  3086. 
Cake  v.  Haight,   732. 
Caldwell  v.   Commercial   Warehouse 
Co.,    1566.    1591. 
v.  Murphy,    2345. 
v.  Mutual      Reserve     Fund     Life 

Ass'n,    2585. 
v.  New     Jersey     Steamboat     Co., 
2231,    2349. 
Caldwell's  Case,   619. 
Calhoun  v.   Hallen,   945. 
v.Millard,    440,    472. 
Calkin  v.  Manhattan  Oil  Co.,  1558. 
Calkins   v.   Bolton,    947. 
Callahan  v.   City  of  New  York,   123. 
v.  Gilman,    876,    1063. 
v.  New    York    Cent.    &    H.    R.    R. 
Co.,    4052,    4121. 
Callanan  v.  Gilman,  2381,  3718,  3967. 
Callen  v.   Kearny,   550. 
Calmbacher  v.  Neuman,  2047. 
Calvet-Rogniat  v.   Mercantile   Trust 

Co.,    4082. 
Calvo   v.   Davies.    999. 
Cambeis  v.  McDonald,   1052,   3853. 
Cambreling  v.   Purton,   6S7,   3775. 
Cambrelleng  v.    Purton,    3233. 
Cambridge     Valley     Nat.     Bank     v. 

Lynch,    617,    2752. 
Cameron    v.    Equitable    Life    Assur. 
Soc,    3714. 
v.  Leonard,  2733. 


Cameron  v.  United  Traction  Co.,  786. 

v.  Young,   18. 

v.  White,    3800. 
Camman  v.  New  York  Ins.  Co.,  1694. 
Camp,   In  re,   492,  2072. 
Camp  v.  Barnev,  16  44. 

v.  Bedell,    1087. 

v.  Chamberlain,    3116. 

v.  Fraser,    582. 

v.  Gifford,    2117. 

v.  Hallanan,    448,    468. 

v.  Ingersoll,    2559,    2561. 

v.  Smith,   520. 
Campanello  v.  New  York  Cent.  &  H. 

R.    R.    Co.,    2307,    2719. 
Campbell  v.  American  Zylonite  Co., 
940. 

v.  Bristol,    273,    2819. 

v.  Brock's     Commercial    Agencv, 
1783,     1787,     3603. 

v.Campbell.    117,    928,    1040,    1053, 
2105,    2380. 

v.  Cayev,    2322. 

v.  Clark,    19  22. 

v.  Clarke,   1345. 

v.  Ellwanger,  468. 

v.  Erie  Ry.  Co.,  1414. 

V.  Ernest,   1568,  1569. 

v.  Fish,    3371. 

V.  Foster,     3265,     3323,     3373. 

v.  Friedlander,    3676. 

v.  Gallagher,    2103,    3674. 

V.  Genet,   992,   3262,   3364. 

v.  Hallihan,     4049. 

v.  Heiland,    3435,    3436,    3858. 

v.  Hoge,    1842. 

v.  Hughes,    444. 

v.  Joseph    H.    Bauland    Co.,    1777. 
1799. 

v.  Kelly,   1338. 

v.  Lumley,    808. 

v.  McCormick,    1320. 

v.  New  York  Cotton   Exch.,   2754. 

v.  Palmer,  1364. 

v.  Perkins,   32. 

v.  Post,    506. 

v.  Prague,    2299. 

v.  Ruger,    3103,    3135. 

v.  Seaman,    171,    2772. 

v.  Smith,    381. 

v.  Spencer,   657,   659. 

v.  Spratt,    1639,    3358. 

v.  Tallihan,    3954. 

v.  United     States     Foundry     Co., 
830. 

v.  Wood,  2288. 
Campbell's  Estate,  Matter  of.   529. 
Campbell  Printing  Press  &  Mfg.  Co. 
v.  Damon,  3431. 

v.  Lyddy,    1697. 

v.  Williamson,    1696. 
Campbell    &    Thayer    Co.    v.    Frost, 

3757,    3758,    3787. 
Campion   v.    Rollwagen,    3870. 
Campion  Card  &  Paper  Co.  v.  Sear- 
ing,   1392,    M  13. 
Canada     Shipping     Co.     v.     Sinclair, 
1788. 

day  v.  Stiger,  3906. 
Canajoharie    Nat.    Bank    v.    Diefen- 

dorf,    2287. 
Canal  Bank  of  Albany  v.  City  of  Al- 
bany,  2734. 


420-2 


TABLE  OF  CASES. 

[REFERENCES    ARE   TO   PAGES.] 


2250. 


Canal   &  Walker  Streets,  Matter  of, 

nnnarv  v    Knowles,  3665. 

v  Russell     292,    306,    1566. 
Canavan  v.  McAndrew,  3266,  3288 

v.  Stuyvesant.    3883. 
Canavello  v.  Michael  &  Co.,  2848. 
Cauda  v.  Gollner,  33 06. 

v.  Robbins,   139b,    2566. 
Candee   v.   Doying,   857 

v.  Gundelsheimer,   3274. 

v.  Hayward,    651. 

v.Jones.    2969. 

v  Osrilvie,    2975. 

v.  Wilcox,   1610. 
Canfield   v.    Baltimore   &   O.    K. 

Cannon   v.    Northwestern   Mut.    Life 
Ins.   Co.,    379. 

v  Titus,    562.  ...^ 

Canter,  Matter  of,   1770 .1771 
Cantillon  v.  Graves,   3211. 
Cantine   v.   Clark    3145. 

v.Russell,    2o65. 

Cantoni  v.  Forster,  2160. 

Cantrell  v.  Conner    1418    1420,  147.. 

Canzi  v.  Conner,   26  rl,   2674. 

Capital    City    Bank    v.    Parent,    734, 

1111      1*Vr     1541     2859,    3304. 

1411.     1056,     X04i,    .•J°^±'>       ,,«,      oorq 

Caponigri  v.  Altieri,  979,  3<07,  3859, 
3877. 
v.Cooper,    2877. 
Caraher  v.   Royal  Ins.  Co 
Card  v.  Meinicke,  2771. 
Cardall  v.  Wilcox,  1721. 
Cardeza  v.  Osborn,   1066 
Cardwell  v.  Cardwell,  8  i  0. 
Carey  v.  Baldwin    97  4 
v  -Rrowne,    2869,    2b  <  4 
v  Srey 201.   1566,   2667. 
v'.  Flack.   2316. 
v.  Kieferdorf,    431. 
v  Reilly,    10  5. 
Carleton  v.  Carleton ,767. 

v.  Darcy,   210o.    210b. 
Carley  v.   Tod.   3287 
Carling  v.   Purcell,   955. 
Carlisle  v.   Barnes,   2711,   2820,   4U0» 

4119,   4168,    4172 
Carll  v.  Oakley,   06SS. 
Carlson    v.    Winterson 

316S,   3909    3910 
Parman  v.  Kelly,   J-'^'- 
C   TNeweU,    231,    2193. 
v.  Plass,    411. 
v.  Pultz,    2012. 
Carmichael,  Ex  parte,  3164. 
Carnaghan   v.    Exporters    &   Produ 

Carnev  V.  Bernheimer,    61,   1892. 

v  Reilly,    2995. 
Carnrick  v.  Myers    3128 
Caro  v.  Metropolitan  El.  R.  Co.,  169 
Carpenter  v.  Acby,  1610. 

v.  Adams,    3633. 

v.  Allen,   268. 

V.  Beare,    2686. 

v.Bell,   834.   1078. 

v.  Blake,    2250. 

v.Butler,     2842 

v  Carpenter,    S  <  0 

v.  Coe,    2708. 


)5. 


2254,     2270 


2722. 


Carpenter    v.    Continental    Ins.    Co., 
1955. 
v.  Danforth     159S. 
v  Eastern    Transp.    Co.,    2324. 
v.Fisher,    1592. 
v.  Herrington.    1418. 
v.  Knapp,    2235. 
v.  Manhattan  L.  Assur.  Co.,  2920, 

v  Manhattan   Life   Ins.    Co.,    977, 

979,    980. 
v.  Mergert,    1088     4109 
v  New  York  &  N.  H.  R.  Co., 
v.  Osborn,    3386,    3396,    3429. 
v.  People,   2315. 
v   Schermerhorn,    2645. 
v.  Shelden,   2366. 
v.  Shinier,  450. 
v.  Simmons.  3090,  3097,  3245. 
v   Sixth   Ave.   R.   Co.,   297. 
v.  Spooner,    737. 
v.  Stilwell,    2335. 
v.Ward.    2259. 
Carpentier  v.   Minturn,   816. 
v.  Willett,    3960. 
v.Wilson,    2107. 
Carpi es   v.   New   York   &   H.    R.    Co., 

3867.  „„„c 

Carr  v.  Butler,  2675. 
v  Carr     ^355 
v!  Corcoran,  '1382,    1410 
v.  Great   Western   Ins.    Co.,    177b. 

Vv  Providence  Wash.  Ins  Co.,  404 
v  Rischer,   2067,   2102,  2103,  3677. 
v.  Risher,  1785. 
v.  Sterling,    2871. 
v.  Sullivan,    2298. 
v.Thompson,  477. 
v  Van    Hoesen,    1414,    1454. 
Carr    &    Hobson    v.    Sterling.    1034, 

1357,   1369,   1372    1373 
Carrie  v.  Davis,   861,   874. 
Carrier  v.  United  Paper  Co.,  1440 
Carrigan    v.    Washburn,    3201,    3.04, 

3209,   3972. 
Carrillo   v.   Carnllo,    2158. 
Carrington   v.   Crocker    530. 
v  Florida    R.    Co.,    3640. 
v.  Hutson,    19"2. 
Carris  v.  Ingalls,   832. 
Carroll  v.  Charter  Oak  Ins.  Co  ,  2328. 
v  Cone,    3107. 
v.Deimel,    2150,    2164. 
v  Demarest,    1762. 
v.  Finley,    1500. 
v.Lufkins,    2632 
v.  McKaharay,    323b 
v  Pennsylvania    Steel    Co.,    4138. 
v.  Sand.    1579. 
v.  Watters,    2075 
Carshore  v.  Huyck.  5-0. 
Carstens  v.   Barnstorf.   270- 
Carswell.  v.   Neville,    433     3191. 
Carter  v.   Anderson,   3911. 
v.  Barnum,   29&6. 
v.  Beckwith     2674     2956 
v  Bowe,    1550,    1552,    2Z„s. 
v  Clark,    3005. 
v.clark'e,    3266      3268 
v  Eighth   Ward   Bank    1004. 
V  Good,    1784,    1786     1795 
v  Herbert    Booth    King    &    Bro. 
Pub.   Co.,    996. 


TABLE  OF  CASES. 


4203 


[REFERENCES   ARE   TO   PAGES.] 


Carter    v.    Hodge,    1910,    3226,    3755, 
3774. 
v.  Hoffman,    1303. 
v.  Koezley,    851,    960. 
v.  Newbold,    1093. 
v.  Pitcher,    4021. 
v.  Simpson,    3127. 
v.  Sully,    1695,    1697,    1700. 
v.  Tallcot,    258. 
v.  Youngs,    752,    1625. 
Caruana  v.  Conn,   3116. 
Carver  v.  Barker,   3429. 
Cary  v.  Cary,  4063. 
v.  Livermore,   562. 
v.  Western    Union    Tel.    Co.,    947. 
V.Williams,    1305. 
Caryl  v.    Stafford,    32 4S. 

v.  Williams.    S29. 
Case  v.  Belknap,  2117. 
v.  Carroll,    826. 
v.  New    York    Mut.    Sav.    &   Loan 

Ass'n,    4050. 
v.  Perew,   2267,   2268. 
v.  Pharis,  879. 

v.  Phoenix    Bridge    Co..    852. 
v.Price,    2963,    2988,    2990. 
v.  Turner,    1924. 
Casey  v.  Dwyre,   2360,   2769. 
Cashman   v.  Martin,   2010. 

v.  Reynolds,    994,    1025,    3873. 
Cashmere  v.    De   Wolff,   140. 
Casola  v.   Vasquez,   1399.  1402. 
Caspers  v.  Dry  Dock,  E.  B.  &  B.  R. 
Co.,    2297. 
v.  Higenbotam,    2005,    2006.    2009. 
v.  New    York    &    N.    H.    R.    Co., 
2225. 
v.  Shewman,   2388. 
Cass   v.   Cass,    2576. 

v.  Higenbotam.    976,    1052. 
Cassani  v.  Dunn,  1549. 
Cassard  v.  Hinman,   967,  1839. 
Cassavoy  v.   Pattison,   3040,   3972. 
Cassedy  v.   Wallace,   2156. 
Cassell  v.  Fisk,    1604. 
Cassidv   v.   Arnold.    4046. 
v.  Boyland,    728,    2871. 
v.  Daly,   1086. 
v.  Leitch,    266. 
v.  McFarland,    2558,    2562,    2577, 

3958,   3965. 
v.  United    States    Reflector    Co., 
3114. 
Cassin  v.  Delany,   3906. 
Castle,  Matter  of.  3373. 
Castle  v.  Greenwich  F.  Ins.  Co.,  2735. 

v.Lewis,    1480,    3194. 
Castoriano  v.  Dupe,   1559. 
Castree   v.   Kirby,    1275. 
Casucci    v.    Alleghany   &   K.    R.    Co., 

301. 
Caswell  v.  Kemp,  2766. 
Cathcart  v.   Cannon,  1370. 
Catholic    University    of    America   v. 

Conrad,   3348. 
Catlin   v.    Adirondack    Co.,    32,    2581 
2587,    3198. 
v.  Billings,   2849,   2942. 
v.  Catlin,   2593,    2635. 
v.  Cole,  2682. 
v.  Grissler,    3854. 
v.  Moss,   1388. 
v.  Ricketts,    1387. 


Catlin  v.  Rundell,  3602,  3995. 
Caton  v.   Southwell,   3332. 
Cattabury   v.    Douglass,    1453. 
Cattano  v.  Metropolitan  St.  Ry.  Co., 

2278,  2368,   2369. 
Cattaraugus    Cutlery    Co.    v.     Case, 

1440. 
Cattus,  Matter  of,  285. 
Cauchois  v.  Proctor,  988,  1037,  1084. 
Caulkins  v.  Bolton,   947. 
Caussidiere  v.  Beers.  387. 
Cavanagh    v.    Metropolitan    St.    Ry. 
Co.,   867. 
v.  Oceanic    Steamship    Co.,    989, 

990,   1077. 
v.  O'Neill,  325. 
Caykendoll,    Ex    parte,    2734. 
Cayuga    County    Bank    v.    Warden, 
1044. 
v.  Warfleld,    602. 
Cazeaux  v.  Mali,  1016. 
Cazet   v.   Hubbell,    3240. 
Caziarc  v.  Abram  French  Co.,  864. 
Cazneau  v.  Bryant,   2863. 
C.    B.    Keogh    Mfg.    Co.    v.    Molton, 

255S. 
Center  v.  Finch,  2047. 
Central  Bank  v.  Wright,  664. 
Central  Bank  of  Rochester  v.  Thein, 

1077,  1078. 
Central  Bank  of  Westchester  Coun- 
ty v.  Alden,   1665. 
Central  Cross-town  R.  Co.  v.  Bleeck- 
er    St.    &    F.    Ferry    R.    Co., 
1599. 
v.  Twenty-third      St.      Ry.      Co., 
1846. 
Central  Gas  &  Electric  Fixture  Co. 

v.   Sheridan,   29. 
Central   Nat.   Bank  v.   Arthur,    1968, 
1969. 
v.  Clark,    3635. 

v.  Ft.  Ann  Woolen  Mills,  1441. 
v.  Seligman,    1648. 
v.  White,    1S51. 
Central     Park     Com'rs,     Matter     of, 

3639. 
Central  Trust  Co.  v.  New  York  City 

&  N.   R.  Co.,  40,  2568,  2569,  3633. 
Cerro  De  Pasco   Tunnel   &  Min.   Co. 

v.    Haggin,    4092. 
Chace   v.    Benham,    1948. 
Chadbourne    v.    Delaware,    L.    &    W. 

R.   Co.,    881. 
Chadeayne  v.  Gwyer,  3367. 
Chadwick  v.  Brother,   2902. 
v.  Burrows,    3411. 
v.  Chase,   816. 
v.  Snediker,    268,    2848. 
Chaffee   v.    Equitable   Reserve  Fund 
Life   Ass'n,    1804. 
v.  Morss,   959. 
Chaine  v.   Coffin.   1295,   1346. 

v.  Wilson,    1396. 
Chainless  Cycle  Mfg.  Co.  v.  Security 

Ins.    Co..    2270. 
Chalmer  v.  Melville,  340. 
Chamberlain,    Matter   of,    37S1. 
Chamberlain  v.  Almy,  1864,  1867. 
v.  Beher,    1472,    3124. 
v.  Choles,    3636. 
v.  Cuming,    3862. 


4204 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


Chamberlin  v.  Darrow,  141S,  1420. 
v.  Prinpscy,   225,    237G,   3217,  3.67. 
v.  I  >ouglas,    1584. 
v.  Dumville,    645. 
v.  Greenleaf,    1633,    1645. 
v.  Lindsay,    2712. 
v.  O'Connor.    1859,    1862. 
Chamberlin  v.  Buffalo,  N.  Y.  &  P.  It. 
Co.,    1602. 
v.  Kaylor,    1001. 
v.  West,    29  4  4. 
Chambers  v.   Bentley,  1493. 
V.  Durand,    1344. 
v.  Feron    &   Ballou    Co.,    2903. 
V.  Goldklang,   2294. 
V.Lancaster,    54,    379. 
V.  Lewis,    29,    9S5,    3133. 
Chambers    v.    McKee    Glass    Co.    v. 

Roberts,    1397.    1442,    1518. 
Chambovet  v.  Cagney,   98S. 
Champion    v.    Plymouth    Cong.    Soc, 
3666. 
v.  Webster.    2127. 
Champlin  v.   Deitz,   728. 

v.  Stodart,    3324. 
Champnev   v.    Blanchard,   176S. 
Chandler   v.    Avery,    2593. 
v.  Stevens,    859. 
v.  Trayard,    571. 
Chankalian   v.   Powers,   2242. 
Channing   v.   Moore,   1904. 
Chapin,   Matter   of,    38S4. 
Chapin  v.  Dobson,   2597,  2598. 
v.  Fitzgerald,   1545. 
V.Foster,    3209,    3604,    3664. 
v.  Overin,  1954,  1957. 
v.Pratt,    954. 
v.  Seeley,  1345. 

V  Thompson,     1779,     1780,     2165, 
2685.   273S. 
Chapins   v.   Long,    4081. 
Chapman,  Matter  of,  3902. 
Chapman   v.   Boetcher,    3229,    3230. 
v.  Brooks,   2229. 
v.  City  of  Brooklyn,   3152. 
v.  Comstock,   493. 
v.  Delaware,    L.    &    W.    R.    Co., 

2708,    2938,   4168. 
v.  Dyett,  639. 

v.  Erie  Ry.  Co.,  2322,  2341. 
v.  Fonda,   508. 

v.  Forbes,  421,   422,   429,   430. 
v.  Hammersley,   1632,    3630. 
v.  Hatt,    3207. 
v.  Lemon,    2967,    3059. 
v.  Lvnch,  480,   488,  490,   529. 
v.  McCormick,    2334,    2335. 
v.  Morrill,    3127. 
v.  O'Brien,    3102,    3132. 
v.  Palmer,  950. 
v.'Wolf,    2116. 
Chappel  v.  Chappel,  2883,  2890. 
Chappell  v.  Dann,  250. 
Charles  v.  Waterman,   1886. 
Charles  Roome  Parmele  Co.  v.  Haas, 

607,   1276,   1316. 
Charlick  v.  Flushing,  1841. 
Charlier  v.  Saginaw  Steel  S.   S.   Co., 

3262. 
Charlton  v.  Rose,  1033,  1042,  1047. 
Chase  v.  Behrman,   854. 
v.  Bibbins,   3690,   3722. 


Chase  v.  Chase,  301,  25S2,  3241. 
v.  Deering,  4069. 
v.  Edwards,    539,    546. 
v.  Knickerbocker  Phosphate  Co., 

128. 
v.  Lawson,   768. 
v.  Lord.    2068. 
v.  Miser,  3967. 
v.  Peck,   3150. 
v.  Syracuse,   3015. 
Chaskel    v.    Metropolitan    Ry.    Co., 

1798. 
Chatfleld  v.   Reynolds,   4002. 

v.  Simonson,    42. 
Chatham     Bank     v.     Van     Veghten, 

1093. 
Chatterton    v.    Chatterton,    60,    3701, 
3832. 
v.  Kreitler,    1574. 
Chaude  v.  Chaude,  1654. 
Ohauncev  v.  Lawrence,  1672. 
Chaurant  v.   Maillard,   2765. 
Chautauqua  County  Bank  v.  Risley, 
275.    1651,    3145,    3165,    33S5, 
3426. 
v.  White,    3921. 
Chazv    Marble    Lime    Co.    v.    Deely, 

1442. 
Checkley  v.  Providence  &  S.  Steam- 
ship Co.,  52. 
Cheeney  v.  Arnold,  2337. 
Cheesbrough  v.  Taylor,  81,  2317. 
Cheetham  v.  Lewis,  1922. 

v.  Tillotson,    699. 
Cheever    v.     British-American     Ins. 
Co.,   4107. 
v.  Brown,  2679. 

v.  Pittsburgh,  S.  &  L.  E.  R.  Co., 
2980     2984. 
Chellis  v.  Chapman,  2251,   2349. 
Chemung  Canal  Bank  v.  Board  Su- 

p'rs  of  Chemung  County,   563. 
Cheney  v.  Fisk,   1063. 

v.  New   York   Cent.    &   H.   R.    R. 

Co.,    2347,   2666. 
v.  Rankin,    47,    2070,    20S8. 
v.  Schuyler,  1944. 
v.  Syracuse,   O.    &   N.   Y.   R.    Co., 
487. 
Cherrv  v.  Foley,  S94. 
Chesapeake     Coal     Co.     v.     Menges, 

4073. 
Cheseborough  v.  House,   2141. 

v.  Conover,   2278. 
Chesebro   v.  Hicks,   2957. 
Chesley  v.   Morton,    761.   764. 
Chester  v.  Broderick,   3772,   3773. 

v.  Jumel,    2601,    2709,    2816,    3001. 
Chesterman    v.    Eyland,    2018     2013, 

2020. 
Chevers  v.  Damon,   2988. 
Chevra    Bnei    Israel    Anshe    Yanova 
und   Motal  v.   Chevra  Bikur   Cho- 
lim  Anshe   Rodof  Sholem,    3805. 
Chicago    &   E.    I.    R.    Co.   v.    Central 

Trust  Co.,   35,   38. 
Chichester   v.    Cande,   705,    3066. 
Chilcott   v.    Waddingham,    2129. 
Child  v.  Brace,    3393. 
Childs   v.    Latham,    3104. 
v.  Lyons,   1615. 
v.  Mayer,    2566. 


TABLE  OF  CASES. 


4205 


[REFERENCES  are  to  pages.] 


Childs  v.   Tuttle,   141. 
Chilson  v.   Howe,   281,   3777. 
Chipman  v.  Montgomery,  158. 
Chisholm    v.    Northern    Transp.    Co. 
of  Ohio,    139. 
v.  State,    2282. 
Chittenango   Cotton  Co.   v.   Stewart, 

2581. 
Chittenden,    Matter    of,    284,    2624. 
Chittenden    v.    Davidson,    3190. 
Chrichton  v.  Columbia  Ins.  Co.,  997. 
Christ  v.  Chetwood,   2051,   2730. 
Christal    v.    Kelly,     704,     814,     1020, 

1507,  1511,   2847. 
Christensen   v.    Eno,   472. 
Christian  v.  Gouge,   1873,   1881. 
Christian     Jensen     Co.,     Matter    of, 

1635. 
Christie,  Matter  of,   540. 
Christie  v.  Bowne,  2357. 

v.  Gage,    465. 
Christman  v.  Floyd,  548. 

v.  Thatcher,  423. 
Christopher  &  T.  St.  R.  Co.  v.  Twen- 
ty-Third   St.    Ry.    Co.,    843,    2380, 
3011,   3013. 
Christy   v.    Kiersted,    365. 
v.  Libby,    90S.    3759. 
v.  Perkins,   1054. 
Chrysler  v.  James,  881. 
Chubbuck    v.     Morrison,     188,     1911, 

1923. 
Chu  Pawn  v.   Irwin,   2561. 
Church  v.  American  Rapid  Tel.  Co., 
617. 
v.  Freeman,    2159. 
v.  Haeger,    1583. 
v.  Kidd,   2726. 
v.  Mumford,   56. 
v.  Olendorf,    508. 
v.  Rhodes,  2629. 
v.  Schoonmaker,   464. 
v.  Simmons,    3  7". .. 
v.  Standard   R.   Signal  Co.,   1001. 
v.  Swigert,    4151. 
v.  United  Ins.   Co.,   633. 
v.  Van  Buren,   2S43. 
v.  Wright,    464. 
Church   Co.,    John   v.    Clarke,    985. 
Church  of  Holy  Innocents  v.  Keech, 

1563. 
Church   of    the    Redeemer   v.    Craw- 
ford,   3201,    3209. 
Churchill   v.   Carter,    1746. 
v.  Churchill,   837. 
v.  Trapp,   410. 
v.  Wagner,  2932. 
Churchman    v.    Merritt,    1797,    1898, 

1899,  1900,   1901. 
Ciancimino  v.  Man,   1595. 
Ciancimino's  Towing  &  Transp.  Co. 

v.    Ciancimino,    1589. 
Cincinnati,   H.   &  D.    R.   Co.   v.   Ives, 

361,   362. 
Citizens'    Bank    v.    Rung    Furniture 
Co.,    3891,    4163. 
v.  Williams,   1399. 
Citizens'  Nat.  Bank  v.  Allison,  2822, 
3127. 
v.  Hodges,  3409,  3410. 
v.Shaw,    1493.    1994,    1995. 
v.  Vorhis,    1303. 


Citizens'  Nat.  Bank  v.  Weston,  1708. 

v.  Wetsel,    4044,    4045. 
Citizens'  Sav.  Bank  v.  Bauer,  584. 

v.  Wilder,   1641. 
Citizens'   Water   Works   Co.,  Matter 

of    3S35. 
Citron  v.  Bayley,   2211,   3634. 
City     Bank    v.     Lumlev,     536,     1275, 

1322. 
City  Nat.  Bank  v.  Phelps,  519. 
City  Nat.  Bank  of  Dallas  v.  National 

Park  Bank,   1683. 
City  of  Albany  v.  Cunliff,  910. 
City  of  Brooklyn,  Matter  of,  15. 
City   of   Brooklyn   v.    Brooklyn   City 
&  N.   R.  Co.,   4023. 

v.  City  of  New  York,  361. 

v.  Copeland,   910. 
City  of  Buffalo,  Matter  of,  708. 
City  of  Buffalo   v.   Holloway,    828. 

v.  Ray,   2232. 

v.  Schliefer,    3994. 

v.  Scranton,    2937. 

v.  Yattan,    409. 
City   of    Gloversville    v.    Johnstown, 

G.  &  K.  H.  R.  Co.,  1559. 
City  of  Ironwood  v.  Coffin,  4072. 
City     of     Johnstown     v.     Frederick, 
2968. 

v.  Wade,    3616. 
City   of   New   York,   Matter   of,    225, 

226,   22S,   3650,   3657. 
City    of   New   York   v.    Broadway   & 
S.   Ave.   R.   Co.,   1676. 

v.  Brown,   4135. 

v.  Conover.   627,  1559,   1560,   1588. 

v.  Doody,   854. 

v.  East    Bay    Land    &    Imp.    Co., 
1057. 

V.  Eisler,    720,    722. 

v.  Exchange    Fire   Ins.    Co.,    267. 

v.  Genet.    1396.    1447,    1461. 

v.  Hamilton  Fire  Ins.  Co.,  267. 

v.  Hillsburgh,    2912. 

v.  Kent,    3670. 

v.  Knickerbocker,    4048. 

v.  Lynch,  2106. 

V.  Lyons,   574,    702,   3790. 

v.  Matthews,    4127. 

v.  New  York   &   S.   I.   Ferry  Co., 
1587. 

v.  Sands,    2298. 

v.  Shack,   1676. 

v.  Starin,    1573. 

v.  Third  Ave.  R.  Co.,  4074. 

v.  Wylie,  2296. 
City  of  Niagara  Falls  v.  New  York 

Cent.  &  H.   R.  R.  Co.,   3877. 
City   of   Philadelphia   v.   Postal   Tel. 

Cable  Co.,  274,  278. 
City  of   Rochester,   Matter   of,    3642. 
City  of  Rochester  v.  Campbell,  2068. 

V.  McDowell,    875,    876. 
City  of  Schenectady  v.  Furman,  972. 
City   of  Utica,   Matter  of,    179,   3642. 
City  Real  Estate  Co.  v.  Foster,  2148. 

v.  Gaylor,    3801. 
City    Trust,    Safe   Deposit   &    Surety 
Co.     v.    American    Brewing 
Co.,    3618,   3926,    4173. 

V.  Wilson  Mfg.   Co.,   2656. 
Clady  v.  Wood,   937,  1336. 


4206 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


Clallin  v.   Baere,   L507. 
v.  Clark,    3231. 
V.  Davidson,    2914,   3034. 
V.  Pubois,    659,    3721. 
v.  Eagan,  1937. 
v.  Farmers'     &     Citiens'     Bank, 

2  5S2. 

v.  Flack,   3705. 

v.  Frank,   1304,    1326. 

v.  Frenkel,    127:>,   3664. 

v.  Gordon,  416,  3412,  3413,  341S, 
3429. 

v.  Maguire.   3431. 

v.  Meyer,   2667. 

v.  New  York  Standard  Watch 
Co.,    2235,    2268. 

v.  Sanger,  2882. 

v.  Smith,   S69. 
Claflin   Co.,   H.   B.,    v.    Knapp,    869. 
Clancey  v.   Losey,    2123. 
Clan  Ranald  v.  Wyckoff,  3261,  3362. 
Clapp  v.   Bromagham,    462. 

v.  Clapp,    1640,    1644,    1646,    1655. 

v.  Fullerton,  3990. 

v.  Graves,   650,    705,   3703. 

v.  Guy,    33. 

V.  Hawlev,    2758,    2772. 

v.  Hudson  River   R.   Co.,    2696. 

v.  McCabe,    2763,    2764,   2871. 

v.  Schutt,   1362,   1363. 

v.  Sternglanz,    3711. 

v.  Wilson,   2215,   2252,   2374. 

v.  Wright,  33. 
Clapper  v.   Fitzpatrick,   889. 
Clare  v.  Chittenden,  2126. 

v.  Lockard,   516. 

v.  National  City  Bank,  903. 
Clark,   Matter  of,    2618. 
Clark   v.    Binninger,   279. 

v.  Bowe,    829.    908. 

v.  Brockway,    1650,    3418. 

v.  Brooklyn  Heights  R.  Co., 
2218,    3861,    4119. 

v.  Brooks,  108,  331,  5S2,  2570, 
2737,    3759. 

v.Bruce,    2267. 

v.  Campbell,   1946. 

v.  Candee,    2559. 

v.  Claflin,  3849. 

v.  Clark,  586,  588,  1078,  1583, 
2296,  2585,  2758,  2771,  3338, 
3358. 

v.  Corwin,  2956. 

v.  Dakin,  3183,  3399. 

v.  Dales,  1041. 

v.  Daniels,   4021. 

v.  Davis,   458. 

v.Dillon,    904,    944,    946. 

v.  Donaldson,  2595. 

v.  Eldred,  197,  3631,  3646. 

v.  Ennis,  1811. 

v.  Farley,  839. 

v.  Farrell,  1591. 

v.  Fraser,  2615. 

v.  Frost,  546,  577,  609. 

v.  Gury,  3943. 

v.  Gilbert,  3363,  3371. 

v.  Grant,  1309. 

v.  Herbert  Booth  King  &  Bro. 
Pub.   Co.,   1561,   1574,   1576. 

v.  Hooper,  676,   681. 

v.  House,    2667,    2678. 


Clark  v.  Howard,   3S1. 

v.  King    &    Bro.    Pub.    Co..    3421. 

v.  Lake   Shore   &   M.   S.   Ry.   Co., 
442. 

v.  Lockard,   756. 

v.  Lude,    2364,    2365. 

v.  Lynch,    1416. 

v.  Mackin,   3922. 

v.  Malzacher,    4035. 

v.  Manhattan    Ry.    Co.,    1S14. 

v.  Metropolitan        Bank,        1691, 
1696. 

v.  Mosher,    1869,    2152. 

v.  National      Shoe      &      Leather 
Bank,  2238,  2239. 

v.  New    York   Cent.    &   H.    R.   R. 
Co.,   2703. 

v.  New  York,  L.  E.  &  W.  R.  Co., 
2331. 

v.  Niblo,'  1372. 

v.  Parker,    563,    2174. 

v.  Pemberton,    2101,    2648. 

v.  Pettibone,    1946. 

v.  Pinckney,    12S7,    1346. 

v.  Poor,   1013. 

v.  Richards,    2698. 

v.  Rowling,    3039. 

v.  Savage,  3660. 

v.  Smith,    1528,    2207. 

v.  Snyder,    4000. 

v.  Society  of  St.  James'  Church, 
869. 

v.  Story,    971. 

v.  Strong,    3652. 

v.  Sullivan,    1735,    1753. 

v.  Titcomb,    390. 

v.  Van    Amburgh,    521. 

v.  Van  Vrancken,    817,   2198. 

v.  Vilas  Nat.  Bank,   969,  1917. 

v.  Warren,    1469. 

v.  Water  Com'rs  of  Amsterdam, 
475. 

v.  Weaver,    1477. 

v.  Wilcklow,    1785. 

v.  Wise,   34. 

v.  Woodruff,  269,  3089. 
Clark's   Case.    2797. 
Clark's  Cove  Fertilizer  Co.  v.  Stev- 

er,  898. 
Clarke,    Matter    of,    17. 
Clarke  v.  Boreel.   759,  775. 

v.  Gibbons,    465. 

v.  Goodridge,    1468. 

v.  Lourie,    1276. 

v.  Meigs,    3665,    3939. 

v.  Miller,  3065,   3091. 

v.  Sawyer,   1757. 

v.  Staring,   2979,    2983. 

v.  Tunnicliff,    2938. 
Clarkson   v.   Dunning,    3392. 

v.  Mitchell,    994. 

v.  Root,    2956. 
Clarkson    Home,    Jennie    v.    Chese- 

peake  &  O.  R.  Co.,  2144. 
Clason  v.  Baldwin,   1091,   2298,   2619, 
2771. 

v.  Corley,  3244. 
Clay  v.  Baker,  890. 
Clearwater  v.   Brill,   3192. 

v.  Decker,    37,    2108. 
Cleary  v.   Christie,    3908. 
Cleaveland   v.    Hunter,    2596. 


TABLE  OF  CASES. 


4207 


[REFERENCES  are  to  pages.] 


Cleaveland  Co.,  A.  B.  v.  A.  C.  Nellis 

Co.,    2220. 
Cleflin,  Matter  of,   2607. 
Clegg    v.    Aikens,    2967,    29S4,    300S, 
3019. 

v.  American    Newspaper    Union, 
870. 

v.  Metropolitan  St.  Ry.  Co.,  2240. 

v.  New  York  Newspaper  Union, 
2596,    2707. 
Cleg-horn  v.  Cleghorn,   1015. 
Clemens   v.   American  Fire  Ins.  Co., 
853. 

v.  Clemens,  2041. 
Clement     v.     Congress     Spring     Co., 
2301. 

v.  Ferenback,   53S. 

v.  Grant,    1705. 

v.  New  York  Cent.   &  H.  R.  Co., 
2006. 
Clements  v.  Beale,   1029. 

v.  Gerow,   2883,   28S5. 
Clemons  v.  Davis,   1035. 
Cleveland  v.  Barrows,  65. 

v.  Crawford,    512. 

v.  Johnson,  3260. 

v.  Rothwell,    2011. 

v.  Strong,    2574. 

v.  Toby,   2013. 

v.  Wilder,    2908. 
Clews    v.    Bank    of   New    York   Nat. 

Banking  Ass'n,   2211. 
Clickman   v.    Clickman,   537,    550. 
Clifford  v.   Braun,    257,    4060. 
Clifton  v.   Brown,   1033,   1662. 
Climax  Specialty  Co.   v.   Smith,   891. 
Clinch  v.  Henck,  2564. 
Clinchy  v.   Apgar,   1093. 
Clinton   v.   Eddy,    987. 

v.  Elmendorf,    571. 

v.  King,    S04. 

v.Myers,    1663. 
Clor   v.   Mallory,   728,    1023. 
Close   v.    Flesher,    1558. 

v.  Gillespey,    2809. 

v.  Olney,  2232,   2234. 
Clossey  v.  Ayers,  2120. 
Clover,  Matter  of,   3363. 
Clover  v.  Greenwich,  3863. 
Clowes  v.  City  of  New  York,  492. 

v.  Dickenson,  3146. 
Cluff  v.  Day,  3871. 
Cluff's  Estate,  In  re,  2659,  3983. 
Clum  v.    Smith,    2734,   2754. 
Clumpha  v.  Whiting,  2829. 
Clussman  v.  Merkel,  2595. 
Clute  v.  Clute,   3066. 

v.  Emerich,  2085,  2086. 

v.  Emmerich,     2757,     2792,     3142, 
3146,  3148. 

v.  Knies,  686. 

v.  McCrea,  80. 

v.  Robinson,  358. 
Clyde  v.  Rogers,  1829,  1851,  1973. 

v.  Van  Slyck,  2992. 

v.  Wiggins,  81. 
Coakley  v.  Mahar,  2662. 
Coates  v.  Coates,  1614. 

v.  Fairchild,  3235. 

v.  Goddard,  3007. 
Coatsworth,  Matter  of,  3621. 


Coatsworth    v.    Lehigh    Valley    Ry. 
Co.,   904,   1000,   3621,  3855. 

v.  Ray,  2758,  3044. 
Cobb  v.  Cornish,  2723. 

v.  Cullen    Bros.    &    Lewis    Steel 
Co.,  48. 

v.  Curtiss,  2107. 

v.  Harmon,  689. 

v.  Hatfield,  3618. 

v.  Monjo,  4070. 
Coby  v.  Ibert,  666,   667. 
Cochran  v.  American  Opera  Co.,  922, 
1011,   2126,  3408. 

v.  Fitch,  1480. 

v.  Ingersoll,  340. 

v.  Reich,  816,  947,  3900. 

v.  Sess,  2338. 
Cochrane     Carpet    Co.     v.     Howells, 

2566. 
Cochrane's  Ex'r  v.   Tngersoll,   338. 
Cockefair  v.  Cockefair,  3042. 
Cockerill  v.  Loonam,  984. 
Cockey  v.   Hurd,   580. 
Cockle  v.  Underwood,  2121. 
Cockroft   v.    Atlantic   Mut.    Ins.    Co . 
866. 

v.  Clafiin,  1506,  1511. 
Cocks  v.   Radford,   706,   1038,   1039 

v.  Weeks,  523,  524. 
Codding  v.  Scott,  2942. 
Coddington  v.  Bowen,   2772. 

v.  Dunham,  979. 

v.  Gilbert,  1411. 

v.  Hunt,  2713. 

v.  Union  Trust  Co.,   1002. 
Codwise  v.  Field,  3204. 
Cody  v.  First  Nat.  Bank,  1001,  2764. 
Coe,  Matter  of,  3977. 
Coffey  v.  Lyons,  2239. 
Coffin  v.  Burstein,  334. 

v.  Coke,  2122. 

v.  Grand   Rapids   Hydraulic   Co., 
957. 

v.Lester,  619,  633,  766,  2810. 

v.  McLaughlin,  1688. 

v.  McLean,  973. 

v.  Northwestern  Const.  Co.,  1467. 

v.  Prospect  Park  &  C.  I.  R.  Co., 
1596,  1597. 

v.  Reynolds,  1082,  2593. 

v.  Stitt,  1524. 
Coghlan  v.  Dinsmore,  2370. 
Cogsdill  v.  Brown,  1421. 
Cogswell  v.  Burtis,  2024. 

v.  Meech,  355. 

v.  New  York,  N.  H.  &  H.  R.  Co., 
2141,   2146. 
Cohen,  Matter  of,  2732,  2733. 
Cohen  v.  City  of  New  York,  3953. 

v.  Climax  Cycle  Co.,  1487,  3124. 

v.  Cohen,  2965,  2967. 

v.  Congregation  Shearith  Israel, 
4067. 

v.  Dupont,  2693. 

v.  Ellis,  1653. 

v.  Hautcharow,  1874,  1875. 

v.  Hymes,  502. 

v.  Krulewitch,  3972,   4150. 

v.  Levy,  808. 


1-20S 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Cohen  v.   Morynsh,  4174. 

v.  Metropolitan  St.  Ry.  Co.,  2272. 

v.  Moshkowitz,  2297. 

v.  Rothschild.  1325. 

v.  Simon,  2236. 

v.  United  Garment  Workers, 
1562. 

v.  Walker.  14  63. 

v.Welll,  29S7. 

v.  Wittemann,  4166. 
Cohn  v.  Anathan,  513,   2109. 

v.  Baldwin,  863,  871. 

v.  Beckhardt,  29. 

v.  Goldman,  828. 

v.  Hessel,  4145,  4146. 

v.  Jarecky,  839. 

v.  Kauf  mann,  731. 

v.  Maver  Brewing  Co.,  2287. 
Cohu  v.  Husson,  925,  991,  1054,  2274, 

2950,  3035. 
Coit  v.  Beard,   2131,  2376. 

v.  Campbell,  2080,  2085. 

v.  Goodhart,  870. 

v.  Lambeer,  585. 
Coithe  v.  Crane,   682. 
Colby  v.  Colby,  927. 

v.  Rowley,  3232. 
Cole  v.  Cole,  1723. 

v.  Fall  Brook  Coal  Co.,  1817, 
2217,  2241,  2308,  2704,  2711, 
3853. 

v.  Jessup,  850. 

v.  Lowry,  2970. 

v.  McClellan,  1308,  1314. 

v.  McGarvey,  2116. 

v.  Mahoney,  3853. 

v.  Manson,  18S8. 

v.  Reynolds.  19. 

v.  Rose,  2118. 

v.  Savage,  1574. 

v.  Smith,  40S2. 

v.  Stafford,  1364. 

v.  Stearns,  2107. 

v.  Terpenning,  3956. 

v.  Tvler,  3594. 

v.  Van  Keuren,  2198. 

V.  Wright,  2129. 
Cole's  Estate,  Matter  of,  493. 
Colegate  v.  Marsh,  561. 
Colegrove  v.  New  York  &  N.  H.   R. 

Co.,  397,  2296. 
Colell  v.  Delaware,  L.   &  W.  R.  Co., 

4073,  4120. 
Coleman  v.  Bean,  689,  1507. 

v.  Chauncey,  3009. 

v.  Goodman,  1631. 

v.  Hayes,  1929,   4152. 

v.  Livingston,  3832. 

v.  Phelps,  3757. 

v.  Pickett,  2299. 

v.  Second  Ave.  R.  Co..  470. 

v.  Southwick,  2696. 
Colemard  v.  Lamb,  2334. 
Coler  v.  Lamb,  1663. 

v.  Pittsburgh    Bridge    Co.,     748, 
799. 
Coley's  Estate,   133. 
Colgan  v.  Dunne,   470. 
Collard  v.  Beach,  131,  4053,  4054. 


College  Point  Sav.  Bank  v.  Vollmer, 

3234. 
Collier  v.  Collins,  2745,  4163. 

v.  Do  Revere,   3258,   3280. 

v.  Van  Hoesen,  3994,  4011. 
Collins,  Matter  of,  1395. 
Collins  v.  Adams,  2911,   2925. 

v.  Ball,  3771. 

v.  Beebe,  3271,  3286. 

v.  Burns,  2297. 

v.  Campfield,  752. 

v.  Collins,  2143. 

v.  Evans,  2117. 

v.  Jewell,  20S5,  2087. 

v.  McArthur,  3218. 

v.  North  Side  Pub.  Co.,   948,  951. 

v.  Oceanic      Steam      Navigation 
Co.     2931. 

v.  Reynolds  Card  Mfg.  Co.,  3014. 

v.  Rockwood,  4019. 

v.  Ryan,  756. 

v.  Suau,  1076. 
Collins'  Estate,  In  re,  4174. 
Collis,  Matter  of,  3636,  3639. 
Collis  v.  Bull,  3862. 

v.  Press  Pub.  Co.,   2244. 
Collomb  v.  Caldwell,  3036. 
Collumb  v.  Read,  3428. 
Collyer  v.  Collins,  51.  2392. 
Colman  v.  Dixon,   2158. 
Colne  v.  Girard,  3341. 
Colrick  v.   Swinburne,   481,   487,   881, 

927. 
Colt  v.   Davis,   1077,   1701. 

v.  Miller,  1508. 

v.  Phoenix  P.  Ins.  Co.,  3140. 

v.  Wheeler,  1903. 
Colton  v.  Camp,  3119. 

v.  Jones,  1087,  2766. 

v.  Morrissy,  3636. 

v.  Simmons,  2987. 
Columbia    Bank    v.    Equitable    Life 
Assur.  Soc,  140S. 

v.  Ingersoll,  1466,  1482,  3330. 
Columbia    Turnpike    Road    v.    Hay- 
wood, 696. 
Columbian     Inst.     v.     Cregan,     3265, 

3330-3332. 
Columbus,  H.  V.   &  T.   R.   Co.   v.   El- 
lis, 989. 
Columbus    Watch    Co.    v.    Hodenpyl, 

1384,  2881,  3081. 
Colville  v.  Chubb.  166. 
Colvin  v.  Baker.  3151. 

v.  Brooklyn      Heights      R.      Co., 
3891. 

v.  Martin,  1011. 

v.  Morgan,  1312. 

v.  Shaw,  1047. 
Colwell  v.   Colwell,   2262. 

v.  Garfield  Nat.  Bank,  1626,  1653, 
1654,  3787. 

v.  Ludlam,  859. 

v.  New  York  &  E.  R.  Co.,  32. 
Colyer  v.  Guilfoyle,  2280. 
Coman  v.  Reese,  1304. 
Combs  v.  Bowen,  2883,  2886. 

v.  Combs,  3939,  3941. 
Comer  v.  Mackey,  3870. 


TABLE  OF  CASES. 


4209 


[references  are  to  pages.] 


Comesky    v.    Postal    Tel.    Cable    Co., 

2163. 
Comins  v.  Jefferson  Sup'rs,   3004. 
Comly  v.  New  York  City,  3037. 
Commercial   Bank,   Matter   of,    1653, 

3632,  3639. 
Commercial     Bank    v.     Catto.     3229, 
3230. 
v.  City  of  Rochester,  829. 
v.  Foltz,  262,  281,   2783,  3752. 
v.  Meach,  3415. 
v.  Sherwood,  3706. 
Commercial  Bank  of  Albany  v.  Dun- 
ham, 1843. 
v.  Ten  Byck,  85. 
Commercial     Bank     of     Keokuk     v. 

Pfeiffer,  840,   910,  1063,   10S7. 
Commercial    Bank    of    Pennsylvania 
v.  Union  Bank  of  New  York,  1741, 
1762,  1763,  1766. 
Commercial   Mut.    Ins.    Co.   v.    Brett, 

520,  524. 
Commercial  Nat.  Bank  v.  Hand,  866, 

2998. 
Commercial    Pub.    Co.    v.    Beckwith, 

1786. 
Commercial  Tel.  Co.  v.  Smith,  301. 
Commercial     Union     Assur.     Co.     v. 

Smith,  1564. 
Commercial  Warehouse  Co.  v.   Gra- 

ber,  1375. 
Com'rs   of  Central  Park,  Matter   of, 

175,  3856. 
Commissioners   of  Excise   v.  Hollis- 

ter,  2875. 
Commissioners    of    Pilots    v.    Clark, 
2317. 
v.  Spofford,  2998,  3022,  3023. 
Commonwealth  Fire  Ins.  Co.,  Matter 

of,  1644. 
Compton  v.  Bowns,  498. 
v.  Compton,  2166. 
v.  Hughes,  77. 

v.  Long  Island  R.  Co.,  4035. 
Comstock  v.  Dodge,  2102. 
v.  Halleck,  2942. 
v.  Olmstead,  2957. 
v.  Rathbone,  2630. 
Comyns  v.  Riker,  1564. 
Conable  v.  Keeney,   2705. 

v.  Smith,   2705,   2730. 
Conant  v.   Sparks,   3409. 

v.  Vedder,  3S96. 
Conard    v.    Southern    Tier    Masonic 

Relief  Ass'n,  4050. 
Conaughty      v.      Saratoga      County 

Bank,  3009,  3015,  3024. 
Conboy  v.  Ayres,  1876. 
Concklin  v.  Hart,  1721. 

v.  Taylor,  2841. 
Concordia  Sav.  &  Aid  Ass'n  v.  Read, 

3750,  3773. 
Conde  v.   Rogers,   71. 
Conderman  v.  Conderman,  2156,  2162. 
Condert  v.  Lias,  4008. 
Condon  v.  Church  of  St.  Augustine, 

1920. 
Condouris  v.  Imperial  Turkish,  etc., 
Co.,  1441,  1519. 

N.  Y.  Prac—  264. 


Cone  v.  "Warner,  954. 
Congden  v.  Lee,  3424. 
Conger    v.    Hudson     River     R.     Co., 

2944. 
Congregation   Beth    Elohim  v.   Cen- 
tral Presbyterian  Church,   2012. 
Congregational  Unitarian  Soc,  Mat- 
ter of,  3083. 
Congregational     Unitarian     Soc.     v. 

Hale,  499,  849. 
Conkey  v.  People,  2254. 
Conklin,  Matter  of,  3292. 
Conklin   v.    Dutcher,    678,   1434,   1452. 
v.  John  H.  Woodbury  Dermato- 

logical  Inst.,  964. 
v.  McCauley,    1420,   1429. 
v.  New  York  El.  R.  Co..  2812. 
v.  Snider,   3919. 
v.  Weatherwax,  4103. 
Conkling  v.  Gandall,  855. 
Conley  v.  Mathieson  Alkali  Works, 

4088. 
Conling  v.  Manhattan   R.  Co.,  943. 
Connecticut  Mut.  Life  Assur.   Co.   v. 

Cleveland,  C.  &  C.   R.  Co..  132. 
Connecticut    Nat.    Bank    v.    Bavles, 

453,  696. 
Connecticut    Trust    &    Safe    Deposit 

Co.  v.  Wead,  506,  523. 
Conner  v.  Belden,  1639,  3659. 

v.  Keese,  2991. 
Connolly  v.  Kretz,  3268. 

v.  Manhattan  R.  Co.,  3758. 
v.  Van  Wyck,  1562. 
Connor  v.  Jackson,  2562,  2563. 
v.  Schaeffel,  204. 
v.  Williams,  381. 
Connors  v.  Titus,  2114. 
Conolly   v.   Hyams,    1990,    2280,    4072, 

4078. 
Conover  v.  City  of  New  York,  126. 

v.  Wood,  329. 
Conquest  v.  Barnes,  1025. 
Conrad  v.  Williams,  2320,  2700. 
Conrey   v.    Metropolitan    St.    R.    Co., 

2359,  2363,  2364. 
Conried  v.  Witmark.  1055. 
Conro  v.  Gray,  1632. 
Conroe    v.    National   Protection    Ins. 

Co.,  362. 
Conrow  v.  Little,  45. 
Conroy  v.  Boeck,  3891. 

v.  City  of  New  York,  316. 
Consalus,  Matter  of,  526. 
Consalus  v.  Brotherson,  2989,  3958. 
Conselyea  v.  Swift,  2205,  2207. 

v.  Walker,  2263. 
Considerant  v.  Brisbane,  388,  389. 
Consolidated   Fruit  Jar  Co.   v.  Wis- 

ner,  51. 
Constable  v.  Hardenbergh,   872,   873. 
Constant    v.    University    of   Roches- 
ter, 256. 
Constantine  v.  Constantine,  4075. 
Continental  Bank  Note  Co.  v.  Indus- 
trial Exhibition  Co.,   2566. 
Continental    Const.    &    Imp.    Co.    V. 
Vinal.  1056. 


4210 


TABLE  OF  CASES. 


[references  are  to  tages.] 


Continental    Nat.    Bank    v.    Adams, 
2712,  27  1  I. 
v.  Koehler,  2258. 
v.  Myerle,  1627,  1830. 
v.  National    Bank    of    Common- 
wealth. 2324. 
v.  Thurber,  752. 

V.  United  States  Book  Co.,  751. 
Continental     Store     Service     Co.     v. 

Clark,  141,  1570,  1575,  1591. 
Continental  Trust  Co.  v.  Nobel.  424. 
Converse  v.  Miner,  499. 
v.  Sickles,  269,  957. 
Conway  v.  City  of  New  York,  1042. 
v.  Conway.  387. 

v.  Hitchins,      3267,      3274,      3280, 
3282. 
Conyngham  v.  Shiel,  976. 
Cook  v.  Casler,  2923. 
v.  Chase,  999. 
v.  Cressy,  2SS0. 
v.  Darrow,  197,  3644,  4033. 
v.  Dickerson,     1579,     27S8,     2789, 

3064,  3090. 
v.  Farmer,  767. 
v.  Farnam,  767. 
v.  Farren,  767. 
v.  Freudenthal,  675,  678. 
v.  Genesee  Mut.  Ins.  Co.,  379. 
v.  Jenkins,  2148. 
v.  Mclncrow,  396. 
v.  Matteson,  840,  1064. 
v.  Munn,  2931. 
v.  New  Amsterdam  Real  Estate 

Ass'n.  1802. 
v.  Newman,  1426. 
v.  Pomeroy,  617. 
v.  Ritter,  271. 
v.  Roach, 1319. 
v.  Staats,  538. 
v.  Thurston,  2843. 
v.Warren,  828,  903,  904. 
-v.Whipple,  143,  2880,  2886,  3145. 
v.  White,  2200. 
Cooke  v.  Appleton,  1383,  1396. 
v.  Barker,  2021. 
v.  Beach,  2104,  2106. 
v.  Chase,  3434. 
v.  Lalance     Grojean     Mfg.     Co., 

1804. 
v.  Metropolitan  St.  Ry.  Co.,  1898. 
v.  State     Nat.     Bank.     125.     140, 
1394,  2295. 
Cooley  v.  Curamings,  2912,  3031. 
v.  Decker,  2646. 
v.  Huntington,  2599. 
v.  Lobdell,  472,   485. 
v.  Trustees     of     New     York     & 
Brooklyn  Bridge,  2673. 
Coolidge    v.    American    Realty    Co., 

1448. 
Cooman    v.    Board    of    Education    of 

Rochester,  3287,  3332. 
Coon  v.  Diefendorf.  2922. 

V.  Froment,  904. 

Cooney  v.  Bowles,  1648. 

v.  Cooney,  1428. 


Cooney  v.  "Van  Rensselaer,   27S9. 
Coope  v.  Bowles.  923. 
Cooper,  Matter  of,  16,  246,  647,  3854. 
Cooper,  Estate  of,  2584. 
Cooper  v.  Astor.  3027. 
v.  Bailey,  3068,  3070. 
v.  Bean,  2619. 
v.  Bissell,  56. 
v.  Carr,  656. 
v.  Cooper,  2808,  2809,  3025,   3719, 

3721. 
v.  Findley.  2873. 
v.  Fiske,  1065. 
v.  Greeley,  841. 
v.  Hill  Bros.   &  Co..  3865. 
v.  Howe,  1072. 
v.  Kipp,  978. 
v.  New    York.    O.    &    W.    R.    Co., 

3885,  4162. 
v.  Smith,  118. 
v.  Spicer,  1359. 
v.  Weed,  1693. 
Cope  v.  Sibley,  1766. 
v.  Wheeler,  2088. 
Copeland  v.  Brown.  1830. 
Copley  v.  Rose,  3193. 
Coplev  Iron  Co.  v.  Pope,  51. 
Copp  v.  Hollins,   2246. 
Corbett  v.   Branttngham,  1S96,   1897, 
1899,  1902. 
v.  Claflin,  2125. 
v.  DeComeau,  257,  3958. 
v.  Eno,   1079,  1080. 
v.  Gibson,  190,  257. 
v.  Trowbridge,  865. 
v  Twentv-third  St.  R.  Co.,  2092. 
2101,  2102, 3674. 
Corbin  v.  Baker,  3225. 

v.  Casina    Land    Co.,    1559,    1580, 

3595 
v  George,  839,   842,  1093,  2937. 
Corbit  v.  Nicoll,  1456,  1457. 

v  Watson,  4063,  4064. 
Corbitt  v.  Rice.  1777. 
Corcoran  v.  Mannering,   69. 
Cordas  v.  Morrison,  1937. 
Corde  v.  Laughlin,  3307. 
Cordell  v.   New  York  Cent.   &  H.    K. 

R.  Co.,  2324.  2325.  2326. 
Core  v.  Ford,  1058. 
Corey  v.  Long,  1622,  1624. 
v.  Russell,  1308,  1312. 
Corkings  v.  State,  493,  522. 
Corley  v.  Griffin.  1352. 

v  New  York  &  H.   R.   Co..   2698, 
2699,  2708,  2709. 
Corlies  v.  Ferguson,  3653. 
Cormier  v.  Batty,  1638. 

v.Hawkins,   1274,  1326. 
Corn  v.  Levy,  4115. 

v.  Tamsen,   1549,  1552. 
Corn    Exch.    Bank    v.    Blye,    56,    658, 
701,  707,  2810,  2825. 
v.  Bossio,  1517. 
v.  Marckwald,  1523. 
Corn    Exch.    Nat.    Bank   v.    Kimball, 
1923. 


TABLE  OF  CASES. 


4211 


[references  are  to  pages.] 


Cornell  v.  Bennett,  4020. 

v.  Bostwick,  861. 

V.  Cornell,  2753. 

v.  Dakin,  954,  1477. 

v.  Donovan,  295,  971,  3670. 

v.  King,  1565. 

v.  Moulton,  453,   491. 

v.  Roach,  488. 

v.  Savage,  33S9. 

v.  United      States      Illuminating 
Co.,  2558. 

v.  Woolsey,  1853. 
■Corning  v.  Corning,  1045.  2265.  2697. 

v.  Glenville  Woolen  Co..  3294 

v.  Mohawk  Valley  Ins.  Co.,  1628. 

v.  Powers,  168. 

v.  Pray,  659. 

v.  Radley,  1996. 

v.  Roosevelt,   692,   940,  984,  1014. 

v.  Slosson,  232. 

v.  Stebbins,  3260,  3397. 

v.  Tooker,  3319,  3321,  3323,  3324, 
3328,  3350. 

v.  Trov    Iron    &    Nail     Factory, 
1567. 
Cornish  v.  Graff,  2339,  2341. 

v.  Wormser,   1836,   1S49. 
Cornuel  v.  Heinze.  1908. 
Cornwall  v.  Cornwall,  1057. 

v.  Sachs,  1563,  1584. 
Cornwell  v.  Clement,  491,  906. 

v.  Haight,  2011. 
Corotinsky  v.  Maimin.   22S7. 
Corporation   of   New   York   v.    Daw- 
son,  360,   1953. 
Corr    v.    Sun    Print.    &    Pub.    Ass'n, 

4093. 
Correll  v.  Granget,  735. 
Corscadden  v.  Haswell,  4114. 
Corser  v.  Russell,  1657. 
Corson  v.  Ball.  13S9. 
Cortis  v.  Dailey,   3211. 
Cortland    County    Mut.    Ins.    Co.    v. 

Lathrop,  2942,  2943. 
Corwin  v.  Preeland.  3203. 

v.  Hartman,  2284. 
Corwith   v.   Barry.   3228. 
Cory  v.  Harte,  305. 
Coryell  v.  Perine,  138. 
Cosgrove  v.  Bowe.  3210. 
Cosselmon  v.   Dunfee,   2198,   2699. 
Cossitt  v.  Winchell,  1386,  1388. 
Costar  v.  Peters,  3910. 
Costello  v.  Downer,  506,  507. 

v.  Herbst,  2266,  2269. 

v.  Syracuse,   B.    &   N.    T.    R.    Co., 
114. 

v.  Third  Ave.  R.  Co.,   1689. 
Coster  v.  City  of  Albany,  380. 

v.  Greenpoint  Ferry  Co.,   301. 

v.  New    York    &    E.    R.    Co..    407, 
925. 
Cotes  v.  Carroll,  3719. 

v.  Smith,  3034. 
Cothran  v.  Hanover  National  Bank, 

1055. 
Cotter  v.  Quinlan,  519. 
Cotterell  v.   Slosson,   3365. 
Cotton  v.  New  York  El.  R.  Co.,  3818. 

v.  New  York,  L.  E.  &  W.  R.  Co., 
2188 
Cottrell  v.  Finlavson,  283,  287. 
Couch  v.  Ash.  1302. 


Couch    v.    Millard,    2926,    2927,    2929, 
2997. 
v.  Mulhane,  806,  808. 
Coudert  v.  De  Logerot,  3223,  3229. 
Coughlin  v.  Fay,  34. 

v.  New    York   Cent.    &   H.    R.    R. 
Co.,   264,   292    295 
Coulson  v.  Whiting,'909,'2228. 
Coulter      v.      American      Merchants 

Union  Exp.  Co.,  1045,  2262 
Counsel  v.  Vulture  Min.  Co.,   SO. 
Countryman    v.    Countryman,     1423, 
1428. 
v.  Norton,  223,  2583,  2586. 
County    of    Steuben    v.    Wood,    1093, 

1094. 
County    of    Tompkins    v.    Ingersoll, 

Coursen  v.  Dearborn,   3340 

v.  Hamlin,  1703. 
Courter    v.    McNamara,    1327,     1337, 

1586. 
Courtney  v.  Baker,   1979,   1980    2718 

v.  Eighth  Ward  Bank  of  Brook- 
lyn, 1470,  1471. 
Courtois  v.  Harrison,  3257,  3298 
Courtright    v.    Village    of    Waverly. 

2275. 
Covell  v.  Hart,  249,  271. 
Coveney  v.   Tannahill,   1969. 
Coverly  v.  Terminal  Warehouse  Co  , 

4105. 
Covey  v.   Noggle,  1335. 
Cowdin   v.    Cram,    1298. 

v.  Teal,  3726. 
Cowdry     v.     Carpenter,     3269,     329? 

3781. 
Cowen  v.  Ferguson,  1726,  1727. 

v.  Quinn,  357. 
Cowenhoven  v.  Ball.  2289,  2368,  3798. 

v.  Brooklyn,   2764. 

v.  City  of  Brooklvn,   1085. 

v.  Pfluger,  2298. 
Cowing-  v.  Altman,  2231. 

v.  Greene,  3414. 
Cowles  v.  Watson,  2720,   3861. 
Cowley  v.   People,    2241. 
Cowman,  Matter  of,   279. 
Cowper  v.  Theall,   826,   842,   853. 
Cox  v.  Dorwin,   1920. 

v.  Dwyer.   1291. 

v.  Island   Min.    Co.,    3905. 

v.  New    York    Cent.    &   H.    R.    R. 
Co.,    722,    2031,    2092. 

v.  Schermerhorn,   3673,   3981. 

v.  Stafford,  1420. 

v.  Stokes,    440,    3866. 
Coxson  v.  Doland,   1313. 
Coy  v.  Rowland,  2573,  4033. 
Covle  v.  Davidson,  4120. 

v.  Third  Ave.   R.  Co.,   1044,   1880, 
3967. 

v.Ward,  1011. 
Coyne,    In    re,    3212. 
Coyne  v.  Manhattan  Ry.  Co.,  2240. 
Cozine  v.   "Walter,    1372. 
Cozzens  v.  Higgins,  831. 
Craft  v.  Brandow,   965,   2261,  3123. 

v.  Merrill,    3127. 
Cragin   v.    Lovell,   127,    131,   971,    985, 
994,   1011. 

v.  O'Connell,  1083. 
Craig  v.  Craig,  2610,   2625,   2643. 

v.  Fanning,    701,    2710,    2732. 

v.  Robinson,   2009. 


4212 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


Cram  v.  Moore,  1S53. 

v.  Springer    Lithographing    Co., 
10S6. 

Cramer    v.   .    3192. 

v.  Lovejoy,   196,   3646,   4031. 
Crandall  v.  Beach.  920. 
v.  Bryan,   1319,    1326. 
v.  Jacob,   1295,   1317. 
v.  Moston,    521. 
Crandell  v.  Bickerd,   4001. 
Crane,    Matter    of,    643,    3331,    3351, 

3360. 
Crane  v.   Beecher.   3299. 
v.  Bennett,   2696,   4053. 
v.  Brooklyn      Heights      R.      Co., 

2744. 
v.  Crane,  204,  945. 
v.  Cranitch,  3099. 
v.  Crofoot,   5S6. 
v.  Dygert,  2190. 
v.  Evans,  1733. 
v.  Hardman,  1767. 
v.  Koehler,  1698. 
v.  O'Reilly,  856. 
v.  Powell,  1000. 
v.  Robinson,    3240. 
v.  Stiger,    589,    3231. 
Crane    Co.    v.    Collins,    4162. 
Cranford  v.   City  of  Brooklyn,   19 

2268. 
Crannell  v.  Comstock,  4030,  4033. 
Cranston  v.  New  York  Cent.  &  H.  R. 

R.  Co.,  2352. 
Crapo  v.  City  of  Syracuse,  4076. 
Crary,  In   re,  1501,   1502. 
Crary  v.  Sprague,  2690. 
Crashley   v.   Press   Pub.   Co.,    4053. 
Crasto  v.  White,  962,  1015,  2775. 
Crate  v.  Decore,  2216. 
v.  Lockwood,  1429. 
v.  Loper,  1744. 
v.  Metropolitan      El.      Ry.      Co., 

2268. 
v.  Whitehead,    212S. 
Cratlos    v.    Metropolitan    St.    R.    Co., 

3918. 
Craushaw  v.  McAdoo,  4134. 
Crawford   v.   Canary,   2574. 
v.  Kelly,   2975. 

v.  Mail  &  Exp.  Pub.  Co.,   3905. 
Creamer  v.  Jackson,  1728,  1755,  1763. 
Creed  v.   Hartmann,   397. 
Creegan  v.  Robertson,  3133. 
Cregin   v.   Brooklyn   Cross   Town   R. 

Co.,  229,  2065.   2068,  2090.   2969. 
Creighton   v.   Haggerty,    2150. 
Cremins   v.    East  Lake   Woolen   Co., 

1448,    1453,    1523. 
Cremore  v.  Huber,   2336. 
Creque  v.  Sears,   2273. 
Cresson  v.  Stout,  3117,  3129. 
Creteau    v.    Foote    &    Thorne    Glass 

Co.,   264,  3384,   3386. 
Creuse  v.  Defiganiere,  522,  524. 
Cribben  v.  Schillinger,  546,  1444. 
Crichton  v.  Columbia  Ins.  Co.,  1015, 

2777. 
Cridler  v.  Curry,  410,  411. 
Crill  v.  Kornmeyer,  3258. 
Crim  v.  Cronkhite,  2916. 
v.  Drain,    2031.    2974. 
v.  Starkweather,    2244,    3901. 
Crippen  v.  Brown.   297S. 
v.  Heermance,   2929. 


Crippen  v.  Hudson,  3386,  3394,   3397. 

v.  Morss,    2271. 
Crisfield  v.  Bogardus,  3434. 

v.  Murdock,  3246. 
Critelli  v.   Rodgers,   84S,   1045. 
Crittcn  v.  Vredenburgh,   2SS3. 
Crittenden  v.  Adams,  3723. 
Crocker  v.   Baker,   1575. 
v.  Crocker,    644. 
y.  Fairbanks,  977. 
v.  Gollner,   3237,   3241. 
Croden  v.  Drew,  2875. 
Croft  v.  Haight,  2295,  3870. 
Crofts  v.    Rockefeller,   2941. 
Crofut  v.   Brandt.   3118. 
Croghan  v.  Livingston,   2047. 
Croker,  Matter  of,   3856. 
Croker  v.  Sturgis,  3727. 
Croll  v.  Empire  State  Knitting  Co., 

1964. 
Crompton  &  Knowles  Loom  Works 

v.  Brown,    1229. 
Cromwell  v.  Burr,   3603. 
v.  Clement,   37Q1. 
v.  Gallup,   1482. 
v.  Hughes,   912. 
v.  Romer,    1963. 
v.  Van  Rensselaer,  563. 
Croner  v.  Farmers'  F.  Ins.  Co.,  2728* 

2815. 
Cronin    v.   Cronin.   2929. 
v.  Crooks,   1335,   1462. 
v.  O'Reilly,   275. 
v.  Tebo,   1704,   1705. 
Cronk  v.  Canfield,  2370,  2722. 
Cronon    v.    Avery,    2632. 
Crook  v.  Crook,  658,  2771. 
v.  Findley,    3359. 
v.  Hamlin,    2375. 
v.  Harper,   4021. 
Crooke  v.  Corbin,  1797. 
Crooks,  Matter  of,   2027,  2606. 
Crooks  v.   People's  Nat.   Bank,   3881. 
v.  Second  Ave.   R.  Co.,   706,  1038. 
Croome  v.  Craig,   990. 
Crosbie  v.  Leary,   913,   2617. 
Crosby  v.  Delawa.re  &  H.  Canal  Co., 
2319. 
v.  Fitzpatrick,    2107,    2116. 
v.  Root,   320S. 
v.  Stephan,  3306. 
v.  Thedford,  37,  771. 
Crosier    v.    Cornell    Steamboat    Co., 

539,   540. 
Crosley     v.     Cobb,     947,     2922,     3026, 

3027,    3032,   3038,   3039. 
Cross,  Matter  of,   549. 
Cross  v.    Cross.    2263. 

v.  National    Fire    Ins.    Co.,    1801. 
v.  Smith,    2269.    2929. 
V.Williams,    3184. 
Crossett  v.  Carleton,  1764. 
Crossitt  v.  Wiles,  3096. 
Crossman   v.    Lurman,   2322. 

v.  Universal  Rubber  Co  ,   47. 
v.  Wvckoff,  869,  3006,   3019.  3802. 
Croton  Ins.  Co..  Matter  of,  1645. 
Crotty  v.  De  Dion-Bouton  Motorette 
Co.,   4176. 
V.Kimball,    1318,    1349. 
v.  McKenzie,    292,    307,    3065. 
Crouch  v.   Gutmann,   2601. 
v.Moll,    3716 
v.  Wagner,  390. 


TABLE  OF  CASES. 


4213 


[references  are  to  pages.] 


Crounse  v.   Syracuse,   C.   &  N.   Y.   R. 

Co.,  1612. 
Crouse   v.    Frothingham,    2263,    3432, 
3434. 
v.  McKee,    470. 
v.  Paddock,  1365,  1366. 
v.  Reichert,    2847. 
v.  Schoolcraft,   3088. 
v.  Wheeler,  3255.  3330. 
v.  Whittlesey,    2836. 
Crouter    v.    Crouter,    735,    740,    2040. 

2047,    3233,    3235. 
Croveno  v.  Atlantic  Ave.  R.  Co.,  148. 

149,    3597,    3608.    3612. 
Crow  v.  Gleason.  527. 
Crowe   v.   House  of  Good  Shepherd, 

9288 
Crowell  v.  Bills,  1892. 
v.  Brown,    1341. 
v.  Church,  924. 
v.  Smith.   2907,   2911. 
v.  Truesdell,   6S. 
Crowley   v.   Johnston,    4077. 

v.  Murphy,   2082. 
Crowns  v.  Vail,  542,  543,  1445. 
Crucible    Co.    v.    Steel    Works,    177, 

1070,  1075. 
Cruger  v.  Douglass,  177,  3630. 
Cruikshank      v.      Cruikshank,      876. 
2356,   2957. 
v.  Goodwin,   261. 
v.  Gordon,   856. 
v.  Press  Pub.  Co.,  949.  1004. 
Cruikshank's      Estate,      Matter      of. 

4074. 
Crumbie  v.  Manhattan  Ry.  Co.,  2582. 
Crumraer  v.  Huff,  29S1. 
Cruse»  v.   Findlay,   955. 
Cnn-t  v.   Phillips,    1511. 
Csatlos   v.    Metropolitan    St.    R.    Co., 

2681.    2682,    2869. 
Cudahy    v.     Rhinehart,     1484,     1485, 

3833. 
Cudd   v.   Jones.   521. 
Cuddeback,   Matter   of,   3656,   3855. 
Cu^lip    v.    N.     Y.    Evening    Journal 

Pub.   Co.,   4141. 
Cuff  v.  Dorland.   928.  2073. 
Culhane  v.  New  York  Cent.  &  H.  R. 

R.  Co..  2285. 
Cullrn,  Opinion   of,   2247. 
Cullen  v.  Cullen.  115. 

v.  William  E.  Uptegrove  &  Bro., 
3665,   3758. 
Culliford  v.  Gadd,  3606,   3732. 

v.  Walser,   1371,  1372,   1373. 
Cullinan  v.  Furthmann.  2298. 

v.  Quinn,  4158. 
Culvor  v.  Felt.   1670. 

v.  Hollister,   1063,   3756. 
Cumberland  Coal  &  Tron  Co.  v.  Hoff- 
man Steam  Coal  Co..  129,  135.  1610. 
Cuming  v.   Whiting.   2561. 
Cummins  v.  Brown.   454,   478.   479. 

v.  Egerton,  2951,   3366,   3374. 
Cummings     v.     American     Gear     & 
Spring  Co.,   73,   78,    1012. 
v.  Morris,    379,    969,    973. 
v.  Willey,   1320,   1680. 
v.  Woolley,    542. 
Cummins  v.  Barkalow,  390. 

v.  Bennett,   47,   2115. 
Cumpston   v    Field.   3087. 
Cunard   v.   Francklvn,   858,    864,   868. 


Cunard    Steamship    Co.    v.    Voorhis, 

38,   1558. 
Cunliff  v.  Delaware  &  H.  Canal  Co., 

1036. 
Cunningham   v.    Cassidy,   3143,   3146. 

v.  Cohn,   379. 

v.  Goelet,    544,    812. 

v.  Hatch,   328. 

v.  Hewitt,    3031. 

v.  McGregor,  2951. 

v.  Massena    Springs    &    F.    C.    R. 
Co.,   866. 

v.  Pennsylvania    S.    &    N.    E.    R. 
Co.,   3261. 

v.  Turney,  1960. 

v.  Von  Pustan,   537,   1433. 

v.  White.  675,  688. 

v.  Widing,    280. 
Cupples    Envelope    Co.,    Samuel,    v. 

Lackner,  4080. 
Curley    v.    F.    &   M.    Schaefer    Brew. 

Co.,  1695. 
Curran  v.  Weiss,   379. 
Currie  v.   Baldwin,   1073. 

v.  Cowles,   971,   1092,   2773. 

v.  Riley,   1458,   1459,   1507. 
Curry  v.   Blair,   2935. 

v.  City  of  Buffalo,   4075. 

v.  Wiborn,  46. 
Curtice  v.  West.   2595. 
Curtin  v.   Barton,   221,   3886. 

v.  Metropolitan  St.  Ry.   Co.,   867, 
3708. 
Curtis,  Matter  of,    286. 
Curtis  v.  Corbitt,   2883,  2887. 

v.  Greene,    595. 

v.  Leavitt,  1621,  3747. 

v.  Patterson.    313. 

v.  Ritzman,    3691. 

v.  Wheeler    &    Wilson    Mfg.    Co., 
2294.    2725. 
Cushing   v.   Ruslander,   1574,    1575. 
Cushing  v.  Vanderbilt,  4025. 
Cushingham  v.   Phillips,   815. 
Cushman   v.   De   Mallie.   3891. 

v.  Hadfield.    651.    3920.    3921. 

v.  Jewell,   1031. 

v.  Johnson,    23  1. 

v.  Leland,    885,    2104. 
Cusick   v.    Adams,    3954. 
Cuthbert     v.     Hutchins.     2573.     2574, 
2579,    2580,    2938. 

v.  Ives,   2159. 
Cutler  v.  Biggs,   561. 

v.James  Goold  Co,  1412. 

v.  Wrisrht,    1012.    101? 
Cutter  v.   Morris.   2286,   29S6,   3038. 

v.  Pool,    1837.    1843,   1844. 

v.  Reilly,   2947. 
Cutting.   Matter  of,    14,    2043. 
Cutting   v.    Baltimore    &    O.    R.    Co., 
1844. 

v.  Jessmer,   4030,   4036,   4062. 

v.  Lincoln,   910. 
Cuykendall  v.  Douglass,   3835. 
Cuyler  v.   Coats,  3036. 

v.  Moreland,    3396,    3410. 

v.  Stevens,  3953. 

v.  Vanderwerk,    1921. 
Cyrenius    v.    Mutual    Life    Ins.    Co., 

391 
Cythe  v.  La  Fontain,  2762,  2906. 
Czarnowsky    v.    City    of   Rochester, 
1928. 


4214 


TABLE  OF  CASES. 


[references  are  to  pages.] 


D. 


Dabney  v.   Stevens,   2668. 
Pada  v.  Piper.   247. 
Daily  v.  O'Rourke,  3748.  3749. 
Da   Garino    v.    Phelps.    4177. 
Daggett  v.   Mead,   2957. 
Dailey   v.    Dailey.    1989. 
v.  Devlin,    501. 
v.  Penton,   1472. 
Daily  Register  Print.  &  Pub.  Co.   v. 

City  of  New  York,  222. 
Dainese  v.   Allen.  2216. 
Dains   v.    Prosser,    1421. 
Dakin,  Matter  of,  285. 
Dakin  v.  Dunning1,  2013. 
Dale  v.   Jacobs.    1290. 
Daley  v.   Hellman.  1936. 
Dalrymple   v.   Williams,    2367. 
Dalton  v.  Sandland.  2081. 

v.  Vanderveer,  2145. 
Daly,   In   re.   2043. 
Daly  v.   Amberg,   1589. 

v.  A.  &  G.   S.   Trans.   Co..  1777. 
v.  Bloomingdale,   867. 
V.  Byrne,   2302. 
v.  Smith.    123.    1584. 
v.  Wolaneck,  1088. 
v.Wood,    1677. 
Dalzel    v.    Fahys    Watch    Case    Co., 
853,    1799.   1829.   1843. 
v.  Long-  Island  R.   Co.,   3843. 
Dambmann  v.   Butterfleld.   1789. 
v.  Schulting,  988,   2122,   3664. 
Damman   v.    Bancroft,   4061. 
Dana  v.  Tucker,   2353,   2734,   2735. 
Danaher  v.  City  of  Brooklyn,   74. 
Dancel  v.  Goodyear  Shoe  Mach.  Co., 

1070,    1074. 
D' Andre  v.  Zimmerman,  2809. 
Dane  v.  Liverpool  &  L.  &  G.  Ins.  Co., 
2568. 
v.  Mallory,   3134. 
Danenbaum    v.    Mandelbaum.     1315, 

1328. 
Danforth  v.  Culver.  522. 
D'Anglemont   v.   Fischer,    4099. 
Daniels  v.    Rogers,    4000. 
v.  Smith,    2390. 

v.  Southard,  187,  2795,  2815,  3994. 
Dann  v.  Baker,   1060. 
Dannenberg  v.  Heller,  1848,  4145. 
Dannhauser  v.   Wallenstein,    3879 
Danzinger    v.    Metropolitan    £31.    Ry. 

Co.   2157. 
Darde  v.  Conklin,   2959,  3943. 
Dare  v.  Murphy,   1922. 
Darling,  Matter  of,   1781. 
Darling  v.   Brewster,   2609,  2855. 
v.  Klock,    1750,   2216,    2273. 
v.  Littlejohn,    2801. 
Darragh,  Matter  of,  3984. 
Darragh  v.  McKim,  1947. 
Darrow  v.  Calkins.  511,  2040. 
v.  Horton,    3235. 
v.  Miller,  613,  1074. 
v.  Reilly,    227.    3349. 
Dart   v.    Farmers'   Bank    at   Bridge- 
port,   814.    911. 
v.  Laimbeer,   2690. 
v.  Soloman,   1667,    1685. 
Date  v.  New  York  Glucose  Co.,  4160. 
Dattelbaum  v.  Tannenbaum,  1047. 


Dauchy   v.   Miller,    580,    582,   585. 
Daus  v.  Nussberger,  1875,  1876,  1878 

1879. 
D'Auxy  v.  Dupre,  977. 
Davenbaugh   v.   McKinnie,   1831. 
Davenport,   Matter    of.    2591.    2645 
Davenport  v.  Kelly,   3418. 

v.  Sniffen,   630. 
Davenport  Glucose  Mfg.  Co.  v.  Taus- 
sig,  1068,   1787. 
Davey  v.  Lohrmann,   2661. 
David,    Matter    of,    2798,    2835,    2836, 

3417. 
David   Belasco  Co.   v.   Klaw.   4150. 
David  Mayer  Brewing  Co.   v.   Rizzo. 

3332,    3333. 
Davids  v.  Brooklyin  Heights  R.  Co., 

4177. 
Davidsburgh   v.  Knickerbocker  Life 

Ins.   Co..    816. 
Davidson  v.  Alfaro,  303,  304,  969. 

v.  Bose,    1892,    1900. 

v.  Chatham   Nat.    Bank,    1492. 

v.  Horn,    3273. 

v.  Mexican  Nat.  R.  Co.,  3857. 

v.  Seligman,   1063. 

v.  Union  Nat.   Bank,    1863. 

v.  Westchester     Gas-Light     Co., 
396. 

v.  Witthaus,  4073,  4075. 
Davies,    Matter    of,    3621,    3874. 
Davies  v.  City  of  New  York,  2001. 

v.  Davies,  2572. 

v.  Duffle,    1913. 

v.  Fish,    432. 

v.  Lincoln    Nat.    Bank.    1789. 

v.  New   York   Concert   Co.,    1649. 

v.  Skidmore,  3189. 
Davin  v.  Davin,  4045. 
Davis,  Matter  of,  279. 
Davis   v.   Aikin,    986. 

v.  Ainsworth,    1478,    1529. 

v.  Allen,   2649. 

v.  Bowe.    261,   270,    272,    3213. 

v.  Brooklyn   H.   R.  Co.,   319S. 

v.  Brooks,    1523. 

v.  Burroughs,    462. 

v.  Carroll,    3235. 

v.  City    of    New    York,    341,    796, 
1007,   1588. 

v.  Cornue,    3621. 

v.  Davis,   335,   2910. 

v.  Delaware      &     H.    Canal     Co , 
3114. 

v.  Duffle,  166,   733. 

v.  Fox,  2859. 

v.  Gorton,    501. 

v.  Grand     Rapids     F.     Ins.     Co., 
2656,   2972. 

v.  Hackley,   1577. 

v.  Herrig,    3041,   3256,   3272,   3287. 

v.  Howard,   2  612. 

v.  Jones,    803,    S08,    3256,    3273. 

v.  Lambertson,  2926. 

V.Leopold,  2612,  2613,  3427. 

v.  Morris,   2883,    2S86. 

v.  New  York,  L.  E.  &  W.  R.  Co., 
1035,   1048. 

v.  Noyes,    521,    523. 

v.  Peabody,    1422. 

v.  Potter,    900.    1071. 

v.  Reflex  Camera  Co.,  3895,  4083, 
4131,  4132,   4160. 


TABLE  OF  CASES. 


4215 


[REFERENCES    ARE   TO   PAGES.] 


Davis  v.  Rich,  538. 

v.  Richards,  2084. 

v.  Rosenstein,  1559. 

v.  Scott,  1271. 

v.  Silverman,   4091. 

v.  Smith,    1037. 

v.  Solomon,    261,     276,    560,     561, 
2874. 

v.  Spencer,    184. 

v.  Standish,   2338. 

v.  Stanford,  1786. 

v.  Tiffany,    3191. 

v.  True,    2299,    3S71. 

v.Turner,  3289,  3320,  3342. 

v.  Van    Buren,    1356. 

v.  Walsh,    2565. 

v.  Westervelt,    1687. 

v.  Weyburn,   3185. 

v.  Zimmerman,    1577,    1599. 
Davis  Mach.  Co.,  W.  P.  v.  Robinson, 

1776. 
Davis    Sewing    Mach.    Co.    v.    Best, 

2665. 
Davison  v.  Associates  of  Jersey  Co., 
2146,  2147. 

v.  Baker,   735. 

v.  Budlong,    453,    517. 

v.  Herring,    2302.    2719,   2721. 

v.  Luckman,   4021. 

v.  Powell,   715. 

v.  Waring,   3007. 
Davy  v.   Betts.    999. 
Dawley  v.  Brown,  48,  942,  1092,  1560. 
Dawson,  Matter  of,  1480,  3185. 
Dawson  v.   Bogart,   1023. 

v.  Parsons,    631,    641,    162S     1650, 
3663,    3720. 
Day  v.   Bach,   1543,   1544. 

V.Day,    4124,    4126. 

v.  Brosnan,   3290. 

v.  Duckworth,   319S. 

v.  Jameson,    2576. 

v.  Leal,   2888. 

v.  Stone,  60. 

v.  Sun   Ins.    Co.,    135,   2903. 

v.  Town   of  New  Lots,   3854. 

v.  Wilber,   815.     ■ 
Davharsh  v.  Enos,  2143. 
Dayton  v.  Church,  2735. 

v.  Connah,  924. 

v.  Johnson,    617. 

v.  McElwee  Mfg.  Co.,  1523. 

v.  Parke,    2000.    3906. 
Dazian  v.  Meyer,  1631. 
Deady  v.   Fink,   3366. 
Deagan  v.   Weeks,   978. 
De  Agreda  v.  Mantel,   413,   2790. 
Dealing   v.    New    York,    N.    H.    &   H. 

R.   Co..    52. 
Dean  v.  Averv,  2239. 

v.  Benn,    2142.    2163. 

v.  Campbell,    3116,    3117. 

v.  City  of  New  York,  2367,  2735. 

v.  Corbett,  2226. 

v.  Cunningham,   1955. 

v.  Driggs,   2571,   2648. 

v.  Eldridge,  40,  2842,   2843. 

v.  Gilbert,  796. 

v.  Hewit,    520,    523. 

v.  Hyatt,   3307 

v.  Lourks,   2875. 

v.  Milne,  2123. 

v.  Roseboom.    2789. 

v.  Whiton,  2111. 


Deane  v.  City  of  Buffalo,  2294. 

v.  O'Brien.   1041. 
Dearing  v.  McKinnon  Dash  &  Hard- 
ware  Co.,    955,    1081,    1082. 
Dease    v.     Reese,     3261,    3330,     3332, 

3350,  3351. 
Debaix   v.   Lehind,   1036,    1045. 
De    Barante    v.    Deyermand,    2118. 
De   Bemer  v.   Drew,    814. 
De  Berard  v.  Prial,  1606. 
De    Betancourt    v.    Metropolitan    St. 

Ry.   Co.,    210. 
DeBevoise   v.   Ingalls,    184,   4023. 
De  Bost  v.  Albert  Palmer  Co.,  2076, 

2335. 
De  Bussierre  v.  Holladay,   960,  1091. 
De  Camp  v.   Dempsey,  3352. 

v.  Mclntire,    3663. 

v.  New    Jersey    Mut.    Life     Ins. 
Co.,  3632. 

v.  Thomson,    3789. 
De  Carrillo  v.  De  Carrillo,   870 
Decatur   v.    Goodrich,    1285. 
Decker  v.  Anderson,   683. 

v.  Decker,   495,   3396. 

v.  Gardner,   1620,   1621,   1624, 
1625. 

v.  Gaylord,  411. 

v.  Judson,  2032. 

v.  Kitchen,  701,  1016,  1046,  2848, 
2S73 

v.  O'Brien,  2596. 

v.  Parsons,   1045. 
De  Courcy  v.   Stewart,   131. 
Dederick  v.   Fisk.   1918. 

v.  Hovsradt,   1921. 

v.  Richley,    2825. 
Dederick's   Administrators   v.    Rich- 
ley,   2559. 
Deeley  v.   Heintz,  2375,   2378,  3877. 
Deems  v.  Crook,   2335. 
Deen   v.   Milne,   2272. 
Deering  v.  City  of  New  York,  988. 

v.  Riley,  459. 

v.  Schreyer,    1066.    2243,   3S79. 
Deeves   v.   Metropolitan    Realty   Co., 

907,    2149,    2155,    2566. 
Defendorf   v.   Defendorf,    2904,    3006, 

3020. 
De  Figaniere  v.   Young,   304. 
De  Forest  v.  Andrews,  264,  973,  979, 
985 

V.  Baker,  1081. 

v.  Farley,  3236. 

v.  Walters.    488,    494. 
De  Freest  v.  City  of  Troy,  3701. 

v.  Warner,   520,   523. 
Degener  v.  Underwood,  3952,  3953. 
De  Graaf  v.  Wvckoff,  910. 
De  Graff  v.  Carmichael,  2206,  2303. 

v.  Cummins,    142. 

v.  Hovt,    2824,    2910. 

v.  MacKinlev,    2566,    2574. 
Degraw  v.   Clason,   3402,   3405. 

v.  Elmore,   2765. 
DeGroot  v.  Jav,  88,   1911. 
DeHart  v.  Hatch,  177. 
Dehn   v.   Mandeville,   890. 
De  Kalb  Ave.  M.  E.  Church  v.  Kelk, 

2958. 
Deklyn   v.   Davis,   1563. 
Delabarre  v.  McAlpin,   4075. 
De  Lacey  v.  Walcott,  1800. 
De  Lacy  v.  Adams,  1564. 


4216 


TABLE  OP  CASES. 


[REFERENCES   ARE   TO   PAGES.] 


Delafleld    v.    Commercial    Tel.     Co., 
155S. 
v.  De  Grauw,  2664. 
v.  J.  K.  Armsby  Co.,  1390,  1442. 
v.  State   of  Illinois,   143. 
v.  Village  of  Westfield,   3947. 
De  La  Fleur  v.  Barney,  4136,  4149. 
Delahunty,  Matter   of,   738 
Delahuntv    v.    Canfield,    40S2,    4083, 
4150. 
v.  Hake,  82. 
Delamater  v.  Byrne,  673. 
v.  Carman,    3946. 
v.  Folz,    144. 
v.  Havens,  650. 
Delancey  v.  Peepgras,  459,  634,  3091, 

3943. 
Delancy  v.  Murphy,  1859,  1861. 
De    Lancv   v.    Blizzard,    2758. 
v.  Brett,   3886. 
v.  Miller,   259,   980,   1011. 
v.Valentine,    2652,    2654,    2655. 
Delano  v.   Harp,   2653. 

v.  Rice,  303,   2754,  2755. 
Delanov  v.  Delanoy,  336,  3063. 
Delany  v.  Delany,  2876. 

v.  Van   Derveer,   2011. 
Delaplaine  v.  Hitchcock,  3098. 

v.Lawrence,   3659,   3978. 
Delatour  v.    Bricker,  2942. 
DeLavallette     v.     Wendt,     490,     971, 

2342. 
De  Lavergne  v.  Evertson,  2021. 
Delaware  v.  Ensign,  2883. 
Delaware,  L.  &  W.  R.  Co.  v.  Bowns, 
926. 
v.  Burkhard,   2941,   3035. 
v.  New    York,    S.    &    W.    R.    Co., 
1564,   4054. 
Delaware  &  Hudson  Canal  Co.,  Mat- 
ter of.   3614. 
Delaware    &    Hudson    Canal    Co.    v. 
Dubois,  881.  ^ 

Delcomyn      v.      Chamberlain,      2978, 

2985    3033. 
De  Leon,  Matter  of,  3287. 
De  Leon  v.  Echeverria,  2344. 
Delisser   v.   New   York,    N.   H.    &   H. 

R.  Co.,  794. 
Delmar  v.   Delmar,   3017,   301S,   3651. 
Delmore  v.  Owen,   1523. 
De  Long.  In  re,  3640. 
De   Long  v.   De  Long  Hook    &   Eye 

Co.,   3014. 
De  Luce  v.  Kelly,  2338,  2719. 
Del    Valle    v.    Navarro,    991. 
Demar  v.   Van   Zandt,    1735. 
De  Marco   v.  Mass,   2830. 
Demarest  v.  Wynkoop,   1913. 
De   Meli  v.   De   Meli,   939,    2263. 
Demelt   v.    Leonard,    587,    650. 
Deming  v.  Kemp,  968. 

v.  New  York  Marble  Co.,  1635. 
Demond    v.    Brooklyn    City    R.    Co., 

2329 
De  Mott  v.  Kendrick,  3682,  3690. 
Dempewolf  v.  Hills,   868. 
Dempsev    v.    Baldwin,    1055. 

v.  Bergen   County    Traction   Co., 

865. 
v.  Dempsey.    530. 
v.  Hall,   2908. 
v.  Lepp,    1280. 
v.  McKenna,  2073. 


Dempsey  v.  Willett,   907. 
Denehy  v.  McCloud,  1893. 
Penenfeld  v.  Baumann,   2211. 
De  Nierth  v.  Sidner,  1320. 
Denike  v.  De  Graaf,  386. 
v.  Denike,  674,  3761. 
Denise  v.  Denise,  527,  2264,  2954. 

v.  Swett,    140. 
Denison,  Matter  of,  1643,  3216. 
Denman  v.  McGuire,  775,  1454. 
Dennerlein  v.   Dennerlein,    3238. 
Denning   v.    Kane.    926. 
v.  Schieffelin,    330S. 
Dennis  v.  Kennedy,   65,  922. 
v.  Tebbetts,    1792. 
v.  Walsh,   2613. 
Dennison  v.  City  of  New  York,  4075. 
v.  Dennison,   949,  1067. 
V.  Musgrave.   1035,   22S0. 
v.  Plumb,    479. 
Denniston  v.  Trummer,  4028. 
Denny  v.  Blumenthal,  1366,  2732. 

v.  Smith,   507. 
De   Nobele  v.   Lee,    852,   2844. 
Dent  v.   Society   of  Friars  Minor   of 
Order    of   St.    Francis.    1742. 
v.  "Watkins,  1337. 
Denton  v.   Livingston.   3108. 
v.  Noves.  272,  2S19. 
v.  Ontario     County    Nat.     Bank, 
256. 
Denvrey  v.  Fox,   3118,  3121. 
De  Pallandt  v.  Flynn,  4104. 
Department  of  Public  Works,  Mat- 
ter of.   278. 
Depew  v.   Dewey,   598.   3231. 

v.  Solomonowitz,    3118. 
De  Peyster  v.  Clarkson,   1374. 

v.  Graves,   1595. 
De  Pierres  v.   Thorn,   440. 
Depierris  v.   Slavin.  1796. 
Deposit     Nat.     Bank     v.     Wickham, 

3306. 
Depuv,  Matter  of,   231. 
De  Puy  v.  Quinn,  2200. 
Derby    v.    Yale,    1091. 
Derham  v.  Lee,'  569,   2143,  2761. 
Derickson   v.    McCardle,   269. 
De  Ridder  v.  Schermerhorn,  411. 
De  Riemer  v.   Cantillon,   3160. 
Dering  v.   Metcale,    3770. 
Derleth  v.  De  Graff,  3612,  3694. 
De  St.  Laurent  v.  Slater,  3863. 
De   Santes   v.    Serle,    1069. 
Deshay  v.  Persse,  546. 
Do   Shields  v.   Creamer,   1549. 
De   Silver  v.    Holden.   65,   1352,   1353. 
Desisles   v.    Cline,    1352. 
De  Sisto  v.  Stimmel,  3124. 
Desmond  v.  Third  Ave.  R.  Co.,  3861. 

v.  Wolf,   574. 
Desplaces  v.   Goris,  2024. 
Dessau  v.   Johnson,   2074. 
De   Stefano  v.   Brown,  1S97. 
De    Stuckle   v.    Tehuantepec    R.    Co., 

3005. 
Deuterman  v.  Gainsborg.  3009    3890. 
Deutermann  v.  Pollock,  226,  620. 
Deutsch  v.   Reilly,   3704. 
Deutschmann  v.    Third  Ave.   R.   Co., 

2262. 
Devanbagh    v.    Devanbagh,    1817. 
Develin  v.  Mehrbach.  1705. 
Devendorf   v.    Dickinson,    2952. 


TABLE  OF  CASES. 


4217 


[references  are  to  pages.] 


Devendorf  v.  Wert,  2688. 

Deveney   v.   Head,    8S1. 

Devitt  v.  Providence  Wash.  Ins.  Co., 

115,    118. 
De  Vivier  v.   Smith,    3346. 
Devlin   v.   Boyd,   2873. 

v.  Citv  of  New  York,  269,  199< 
2556,  2581,  2583,  2585,  2619, 
2620,   3012,  3692. 

v.  Hinman,  338,  3057,  3060,  3061, 
3062,    3063,   3621,   3913. 

v.  Hope,    644. 

v.  Roussel,    763. 

v.  Shannon.   560,   2174. 
Devoe  v.  Brandt,   2291,  3133. 

v.  Nutter,    2629. 
De  Waltoff  v.  Third  Ave.  R.  Co.,  912. 
De  Weerth  v.  Feldner,  542,  1320. 
Dewey  v.   Field.   2575. 

v.  Finn,  3376. 

v.  Hoag,  942 

v.  Mover.   953. 
De  Witt  v.   Brill,   959,   1003. 

v.  Dennis,    3296. 

v.  Monjo,    2596,    2649. 

v.  Simons,   2848. 

v.  Stender,  275. 

v.  Swift,  995.   1007,   2848. 
De    Wolf    v.    Capital    Citv    Ins.    Co., 
2201. 

v.  Williams,  2337. 
De  Wolfe  v.   Abraham,   63,   67. 
Dexter  v.  Alfred,   352,   965,   2911. 

v.  Dustin,    2788. 

v.  Gardner,   3004. 
Dey  v.  Walton,   3668,   3845. 
Deyo  v.  Borley,  3098. 

v.  Morss,  1020,  1026,  1921,  2966, 
2974.  2975. 

v.  Van    Valkenburgh.    639. 
Deyo's  Bx'rs   v.   Jones'   Ex'rs,    523. 
Dezell  v.  Odell,  1477,  3132. 
Dezengremel    v.    Dezengremel,    956, 

3908. 
Diamond   v.   Knoepfel.   326. 

v.  Planet  Mills  Mfg.  Co.,   4163. 

v.  Williamsburgh    Ins.    Co.,    698, 
1027. 
Diamond  Match  Co.  v.  Roeber.  3013. 
Diamond    Soda    Water    Mfg.    Co.    v. 

J.  N.   Hegeman   &  Co.,   272. 
Diaper,  Petition  of,  429. 
Dias  v.   Merle,   326,   1S53. 

v.  Short,   824. 
Dibble   v.    Clapp,    144. 

v.  Dimick,   2677. 
Dibblee   v.   Metcalf,   904,   925. 
Dick   v.   Phillips,   1845. 
Dickenson  v.  Cook,  3117. 

v.  Gilliland,    3172. 
Dickerson  v.  Van  Tine,  1420,  1640. 
Dickinson   v.    Benham,    1514,    1526. 

v.  Bush,   1750. 

v.  City  of  New  York,  482,  490. 

v.  Codwise,  49. 

v.  Dickey,   35,  3220. 

v.  Earle,   2573,  2631,  3048. 

v.Edwards,    2311. 

v.Kimball,    2174. 

v.  Mitchell,    2559,    2560. 

v.  Onderdonk,  3262,  3330,  3334. 

v.Smith,    3137. 
Dickson  v.   Knapp,   3634,  3683. 


Dickson  v.  Manhattan  Ry.  Co.,  2722. 

Didier  v.  Davison,  12. 

Didsbury    v.    Van    Tassell,    104,    105, 

664,   733,  740. 
Diebold  v.   Walter,   4122. 
Dieckerhoff   v.   Ahlborn,    1343. 
Diedrick  v.  Richley,   272. 
Diefendorf  v.  House,  657. 
Diefenthaler   v.    City   of   New   York, 

474. 
Dieffenbach    v.    Roch,    477. 
Diehl  v.  Beck,  1057. 

v.  Dreyer,   3916. 

v.Lambert,    1053,    1057. 
Dienst  v.  McCaffrey,  303. 
Dierig  v.  Callahan,   3646. 
Dietlin  v.  Egan,  1520. 
Dietz  v.   Farish,   638,  708,  2808,   3023. 

v.  Leber,    868. 
Dill  v.  Wisner,   2925. 
Dillaye  v.  Hart,  2863. 

v.  Parks,   957. 
Dilleber  v.  Home  Life  Ins.  Co.,  2241, 

2270. 
Dillenback  v.   Jerome,   1477. 
Dillingham  v.  Barron,  818. 

v.  Flack,    2705,    2712. 
Dillon  v.  Acme  Oil  Co.,  2151. 

v.  Cockcroft,  2277. 

v.  Sixth  Ave.  R.  Co.,  990. 
Di  Lorenzo  v.  Di  Lorenzo,  3780,  3858. 
Dime  Sav.  Bank  v.   Pettit,   3247. 
Dimick   v.    Cooley,    298,    300. 
Dimon   v.   New  York  Cent.    &  H.   R. 

R.  Co.,   2307. 
Dinan  v.  Coneys,  1093. 
Dings  v.   Guthrie,  531. 
Dininny  v.   Fay,   378,   2005. 
Dinkel  v.   Wehle,    3762,   3763. 
Dinkelspiel  v.   N.   Y.   Evening  Jour- 
nal Pub.  Co.,  4125,   4126. 
Dinniny  v.  Gavin,  452. 
Dinsmore  v.  Adams,  2827.  2873. 

v.  Atlantic   &   P.    R.    Co.,   415. 

v.  Commercial   Travelers'   Ass'n, 
341. 
Dintruff  v.   Tuthill,   1402,   1450,   1462. 
Diossy  v.  Rust,  862. 

v.  West,  3273,   3299. 
Disbro   v.   Disbro,   1571,   1603. 

v.  Garcia,    1613. 
Disbrow  v.   Folger,   238. 

v.  Harris,  976. 
Dise    v.    Metropolitan    St.    Ry.    Co., 

2282. 
Disher  v.   New  York   Cent.   &  H.  R. 

R.    Co.,    450. 
Dissosway  v.  Winant,    3048. 
Distin  v.  Rose,   2251. 
Ditmas  v.   McKane,   2671,   2682. 
Dittman,     Matter      of,      1772,      1774, 

3659. 
Dittmar  v.  Gould,  3390,  3  103,  3412. 
D'lvernois  v.  Leavitt,   128. 
Divine  v.  Duncan,  398,   1022,   1059. 
Dix  v.  Briggs,   3397. 

v.  Palmer,   814,   2853,   3028. 
Dixon,  Matter  of,  2572. 
Dixon  v.  Beach,  1345. 

v.  Buck,   2677. 

v.  Coleman,  3410,  3413. 

V.Dixon,  3143,  3146,  3156,  3158, 
3160,  3161. 


42  IS 


TABLE  OF  CASES. 


[REFERENCES   ARE   TO   PAGES.] 


Dixon  v.   James,   3902. 

V.  Rice.    3864. 
Dixon   Cruicible  Co.,  Joseph   v.   New 

York   City   Steel   Works,    3633. 
Dixson  v.   Brooklyn  Heights  R.  Co., 

2  71  1. 
Dixwell   v.   Wordsworth,    893,    897. 
Doan  v.  Lindsav,   1407,   1408,  1483. 
Dobbs   v.    Brinkerhoff,   4165. 

v.  Niebuhr,   3223. 
Doctor  v.  Schnepp,   1439.   1445. 
Dr.   Jaeger's   Sanitary   Woolen   Sys- 
tem Co.  v.  Le  Boutillier,  3014. 
Dodd  v.  Astor,  639,  645. 

v.  Curry,   2968. 
Dode  v.  Manhattan  R.  Co  ,  3015,  3024. 
Dodge  v.  Colby,   64,   127,  131,   1005. 

v.  Cornelius,    4S6. 

v.  Eckert,   835. 

v.  Glendenning,  72. 

v.  Havemeyer,   2294. 

v.  Johnson,   927. 

v.  Kaufman,  4172. 

V.  Lawson,   1860,   1S62. 

v.  New  York  &  W.  S.  S.  Co.,  2704. 

v.  Porter,  1476. 

V.  St.   John,   671,    675. 

v.  Stevens,    2052. 

v.  Weill,  880. 
Dodge   &   Stevenson   Mfg.    Co  ,   Mat- 
ter of,   230. 
Doedt  v.  Wiswall,   2070. 
Doelger  v.   O'Rourke,    2934,    2967. 
Doheny  v.  Worden,  765,  778,  1516. 
Doherty   v.    Evening   Journal  Ass'n, 
4088. 

v.  Lord,    2195. 

v.  Matsell,   459. 

v.  Shields,   821,   826,   1041. 
Dohn     v.     Buffalo    Amusement    Co., 

3944. 
Dohring  v.  People,  222. 
Dolan  v.  Aetna  Ins.  Co.,  2700. 

v.  Delaware     &    H.     Canal     Co., 
2322. 

V.  Herring-Hall      Marvin       Safe 
Co.,   415S. 

v.  Knapp,    1350. 

v.  Merritt,   2618. 

v.  People,   2191. 

v.  Petty,  1703. 
Dolbeer  v.  Stout,  51,  1445,  1916,  1918. 
Dolcher  v.    Fry,   855. 
Dole  v.  Manley,   806,   807. 
Dollard   v.    Tavlor,    3352,    3356,    3643. 
Dollfus  v.   Frosch,   639,   1736,   2314. 
Dolliver  v.  American  Swan  Boat  Co., 

298 
Dollner  v.  Lintz,  2255. 
Domeyer  v.  Hoes,    2958. 
Dominick   v.    Dominick,    2334. 

v.  Eacker,    3091. 
Domschke    v.    Metropolitan    El.    Ry. 

Co.,    2161,    2596. 
Donadi  v.  New  York  State  Mut.  Ins. 

Co.,  799. 
Donahue  v.  Brooklyn  Q.  C.    &  S.   R. 
Co.,   2266. 

v.  New   York    Cent.    &   H.    R.    R. 
Co.,   2343. 

v.  Wippert,    2365. 
Donai   v.   Lutjens,    2673. 
Doner  v.  Williams,  83. 


Donnell    v.    Walsh,    1727. 

v.Williams,   1387. 
Donnelly  v.   Brooklyn,  2768. 

v.  City   of  Brooklyn,   466. 

v.  City  of  New  York,  3624. 

v.  Donnelly,   2629. 

v.  Foote,  1371. 

v.  Libbv,    2903. 

v.  McArdle,    2729,    2815. 

v.  West,  775,  3865. 
Donner  v.  Mercy,  1499.   1500,  1501. 

v.  Ogilvie,    1896. 
Donohue  v.  Champlin,   2629. 

v.  Hungerford,    48,    273. 

v.  Mears,   867. 

v.  Syracuse  &  E.  S.  Ry.  Co.,  953. 
Donovan     v.     Board     of     Education, 
3045. 

v.  Clark,   3761. 

v.  Connell,    1287. 

v.  Hunt,    52. 

v.  Main,  945,   1071. 

v.  Sheridan,   376,   3138. 

v.  Vandemark.    3961. 

v.  Wheeler,    3016. 
Doody   v.    Hollwedel,    3148. 
Dooley  v.  Paget,  1677,   1687. 
Doolittle  v.  Dininny,   676,   4005. 

v.  Gambee,   2251,   2263. 

v.  Supervisors  of  Broome  Coun- 
ty,   116. 

v.  Tice,    462,    463. 
Door  v.  Mills,  1085. 
Dorchester  v.   Dorchester,    2727. 
Doremus  v.  Crosby,  3001,  3012,  3018,. 
3020. 

v.  Doremus,    2634,    2640. 
Dorgan  v.  Scheer,  873. 
Dorian   v.  Wilson,   676. 
Dorland  v.   Dorland,   3086. 
Dorlon  v.   People,   277,  663,   2631. 
Dorman  v.  Broadway  R.  Co.,  2191.. 

v.  Gannon,   93. 
Dorr  v.   Beck,   3427. 
Dorrity    v.    Russell,    2250. 
Dorsey  v.   Cummings,   3301,   3303. 

v.  Pike,  2238. 
Dorthy  v.  Servis,  3434. 
Dorwin    v.    Westbrook,    2695. 
Doty  v.  Brown,  236. 

v.  Michigan  Cent.  R.  Co.,  749. 

v.  Russell,  598. 

v.  Turner,  3104. 
Doud  v.  Donnelly,  1727. 
Dougall  v.  Dougall,  2600. 
Dougan    v.    Champlain    Transp.    Co.,. 
139. 

v.  Cohen,  1377,  1378. 

v.  Evansville  &  T.  II.  R.  Co.,  944. 
Doughertv  v.  Gardner,  3203. 

v.  King,    1657,    2322. 

v.  Metropolitan  L.  Ins.  Co.,  2922. 

v.  Stone,    2327. 
Dougherty's  Estate,  Matter  of,  3083. 
Doughty  v.    Hope,   2338. 

v.  Picott,  4003,  4029,  4030. 
Douglas  v.  Coonley,   1014,  3715. 

v.  Delano,   1840,   1851. 

v.  Douglas,  2654,  2726,  3840. 

v.  Haberstro,  119,  809,  1372,  2723, 
2853,  3090. 

v.  Phenix  Ins.   Co.,   1012,    1409. 

v.  Smith,  2626. 


TABLE  OF  CASES. 


4210 


[references  are  to  pages.] 


Doug-las  v.   Stockwell,   1055. 

v.  Warren,  1362. 

v.  Yost,  3841. 
Douglas  Co.,  John,  v.  Moler,  1004. 
Douglass  v.  Bush,  334. 

v.  Leonard,  2237. 

v.  Macdurmid,  2963.   2964. 

v.  Mainzer,   3269,   3284. 

v.  Meyer,  1780,  1783. 

v.  Phenix  Insurance  Co.,  51, 
1011,  1410. 

v.  Reilly,  3994. 

v.  Tousey,   2357,   2359. 
Douglass  Co.  v.  Moler,  2653. 
Dougliss  v.  Atwell,  2989. 
Dounce,  In  re,   1794. 
Douw  v.  Burt,  3088. 
Dovale    v.    Ackermann,    2342,    2570, 

2721,  2875. 
Dovan  v.  Dinsmore,  833,  834,  846. 
Dow  v.  Darragh,  2596. 
Dowd  v.  Smith,  1991,  2000. 
Dowdney  v.  Volkening.  S58,  861. 
Dowling  v.  Bucking,  2944. 

v.  Bush,  2979. 
Downey   v.   MacAleenan,    1834,    1841. 

v.  May,  652. 
Downing  v.  Marshall,  2902,  2962. 
Downs  v.  Farley,  1874. 
Dows  v".  Green,  1032. 

v.  Kidder,  I860. 

v.  Rush,  2347. 
Dox  v.  Dey,  2697. 
Doyle  v.  Albany  Ry.  Co.,  2287. 

v.  American  Wringer  Co.,  67. 

v.  Citv  of  New  York,  278,  2572, 
2625. 

v.Doyle,  317,   321. 

v.  Fritz,  2777. 

v.  Kimball,  1802. 

v.  Metropolitan  El.  Ry.  Co., 
2569-2571,  25S2. 

v.  New  York,  O.  &  W.  Ry.  Co., 
300. 

v.  O'Farrell,  2127. 

v.  Sharp,  143. 
Drago  v.  Smith,  289. 
Drake  v.  Cockroft,  944,  976. 

v.  Drake,  869,  1006. 

v.  New  York  Iron  Mine,  257, 
1913,  1922,  2390,  2392,  2681, 
3788,  3933. 

v.  Rogers,  3781. 

v.  Satterlee,  1007,  1017. 

v.  Siebold,  955,   1029. 

v.  Smith,  378. 

v.  Village     of     Port     Richmond, 

v.  Weinman    &    Co.,    1784,    1790, 
1801. 
Draper  v.  Beers,  1321. 

v.  Hensingsen,  1797. 

v.  Pratt,  4071. 

v.  Stouvenel,  55,   56. 
Drennan  v.  Boice,  2265,  2283. 
Dressel  v.  City  of  Kingston,  2940. 
Dresser  v.  Brooks,  2736,  3606,  3920. 

v.  Shufeldt,  3191. 

v.  Van  Pelt,  228. 
Drevert  v.  Appsert,  892. 
Drew  v.  Andrews,  2350,  2351. 

v.  Comstock,  2975. 

v.  Dwyer,  3396. 


Drewson    v.    American    Surety    Co., 

1610,  3190. 
Drexel  v.  Pease,  2569. 
Drexel,  Hayes  &  Co  ,  Matter  of,  1764. 
Dreyer  v.  Rauch,  1867. 
Dreyfus  v.  Bernhard,  1S05. 

v.  Carroll,  816. 

v.  Casey,  1867,  2077. 

v.  Otis,  1322. 
Driggs  v.  Phillips,  2341,  2342. 

v.  Simson,  3144. 

v.  Smith,  3291. 

v.  Williams,  3300,  3345. 
Drischler  v.  Van  Den  Henden,   93. 
Driscoll    v.    Brooklyn    Union    El.    R. 
Co.,  4101. 

v.  Nelligan,  2353. 
Droege  v.   Baxter,   2947,  3363. 
Drought  v.  Curtiss,  1054,   1057. 
Drucker  v.  McCallum,  823. 

v.  Patterson,  3833. 
Drucklieb  v.  Universal  Tobacco  Co., 

4164. 
Drummond  v.  Matthews,  2873. 
Drury  v.  Russell,  262,  656. 
Dry  Dock,  E.  B.  &  B.  R.  Co.  v.  Cun- 
ningham, 1579. 
Dryer  v.  Brown,  2219. 

v.  Shevalier,  2123. 
Duane  v.  Northern  R.  Co.,  618,  3612. 

v.Paige,  420,  424. 
Dubois  v.  Beaver,  848. 

v.  Budlong,  1562. 

v.  Cassidy,  3364,  3373,  3374. 

v.  City  of  Kingston,  448. 

v.  Hermance,  946. 

v.  Hull,  1032. 

v.  Thompson,   1277,   1286,   1287. 

v.  Union  Dime  Sav.  Inst.,  1860. 
Dubuc  v.  Lazell,  Dalley  &  Co..   4165. 
Duche    v.    Buffalo   Grape   Sugar  Co., 
363,   1945,   1951. 

v.  Voisin,  562,  762,  781. 

v.  Wilson,  2342. 
Duclos  v.  Benner,  5S5,  667,  2811. 
Dudgeon  v.  Smith,  2969. 
Dudley  v.  Brinck,  2876. 

v.  Brinckerhoff,  4028. 

v.  Broadway  Ins.  Co.,  1043. 

v.  Congregation  of  Third   Order 
of  St.  Francis,  2146,  2765. 

v.  Goodrich,  1505. 

v.  Grissler,  3633. 

v.  Mayhew,   123,  141. 

v.  New  York  Filter  &  Mfg.  Co.,. 
1780. 

v.  Press  Pub.  Co.,  1808. 
Dueber    Watch     Case    Mfg.     Co.     v. 

Keystone  Watch  Case  Co.,  871. 
Duell  v.  Alvord,   3075,   3077. 
Duer  v.  Fox,  804. 

v.  Twelfth  St.  Reformed  Church, 
485. 
Duerr  v.  Consolidated  Gas  Co.,  4165. 
Duff  v.   Hutchinson,  1830,   1835. 

v.  Lyon,  2370. 
Duffus  v.   Bangs,  2864. 

v.  Cole,  3307. 
Duffy  v.  Casey,  1649. 

v.  Consolidated   Gas  Co.,   1804. 

v.  Dawson,  3107,   3297. 

v.  Duffy,  2085. 

v.  O'Donovan,  2012. 


4220 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


Duffy  v.  Ryer,  S70. 
Dugan  v.  Denyse,  2052. 

v.  Sharkey,  1077. 
Duggan   v.  Lake  Shore  &  M.   S.   Ry. 

Co.,  14S0. 
Duguid  v.  Edwards,  12S6. 

v.  Ogilvie,  2596. 
Duhrkop  v.  White,  3048,  3050. 
Duigan  v.  Hogan,  1567. 
Dukelow  v.  Searles,  2957. 
Dulon  v.  Camp,  249. 
Dumar    v.    Witherbee    Sherman    Co., 

862,   4124,  4125. 
Dumond  v.  Church,  3161. 
Dunaher  v.  Meyer,  1285,  1342. 
Dunaway  v.  Terry,  1902. 
Duncan  v.  Ainslie,  1704. 

v.  China  Mut.  Ins.  Co.,  391,  1091. 

v.  De  Witt,  3003,  3025,  3636. 

v.  Dodd,  3232. 

v.  Guest,  1269,  1324,  1326. 

v.  Jones,  1776. 

v.  Katen,  1281.  1306. 

v.  Stanton,  973. 

v.  Western  Union  Min.  Co.,  2876. 
Dunckel  v.  Farley,  2910. 
Duncomb  v.   New  York,   H.   &  N.   R. 

Co.,  117. 
Dundee  Nat.  Bank  v.  Wood.   3065. 
Dunderdale  v.  Grynes,   999. 
Dunford  v.  Weaver,   740,   3210,   3211, 

3854. 
Dunham  v.  Bower,  972. 

v.  Cressy,  737. 

v.  Cudlipp,  2379. 

v.  Dodge,  519,  525. 

v.  Fitch,  3857. 

v.  Hastings  Pavement  Co.,   4119. 

v.  Jarvis,  1601. 

v.  Macomber,  1365. 

v.  Mercantile  Mut.  Ins.  Co.,  1796. 

v.  Minard,  3233. 

v.  Murdock,  3103. 

v.  Nicholson,  3389. 

v.  Parmenter,  1962. 

v.  Reilly,  3067. 

v.  Sherman,  2985. 

v.  Townshend,  3854. 

v.  Trov  Union  R.  Co.,  83. 

v.  Waterman,  2S83,  2890. 
Dunk  v.  Dunk,  1907. 
Dunkin  v.  Lawrence,  1604. 
Dunlap  v.  Stewart,  1002. 
Dunlap  &  Co.  v.  Young,  3014. 
Dunlay    v.    American    Telephone    & 

Telegraph  Co.,   1881,   2050. 
Dunlearey  v.  Dunlearey,  4166. 
Dunlotfi  v.  Mulry,  3235. 

v.  Patterson,   2327,   2330. 

v.  Patterson   Fire  Ins.  Co.,   1415, 
1483,  1499. 
Dunn,  Matter  of,   320,   529,   3603. 
Dunn    v.    Acker.    Merrall    &    Condit, 
1482,  1493. 

v.  Arkenburgh,    1475,    1497,   2951, 
2955. 

v.  Herbs,'  3237. 

v.  Mason,  1697,  1698. 

v.  Meserole,  639,  2130. 

v.  Parsons,  2276. 

v.  People,  2224. 

v.  Uvalde  Asphalt  Pav.  Co.,  4110. 

v.  Wehle,  207. 
Dunn's  Estate,  Matter  of,  398. 


Dunne  v.  American  Surety  Co.,  1891, 

1899. 
Dunnigan  v.  Crummey,   1039. 
Dunning  v.    Bank   of   Auburn.    1697, 
1698. 

v.  Humphrey,  2006. 

v.  Leavitt,    384. 

v.  Ocean  Nat.  Bank,  485. 

v.  Thomas,  837. 
Dunseith  v.  Linke,  676,  3749. 

v.  Stark,  3957. 
Dunster  v.  Kelly,  2908. 
Dunston  v.  Hagerman,  834. 
Duntz  v.  Duntz,  4019. 
Duparquet  v.  Fairchild,  897. 
Duperey  v.  Phoenix,  2968. 
Dupignac  v.   Dupignac,   1699. 

v.  Van  Buskirk,  596,   1699. 
Duprat  v.  Havemeyer,   1067. 
Du   Puy   v.   Quinn,   2196. 

v.  Wurtz,  3960. 
Durand  v.  Hankerson,  3431. 
Durant     v.     Abendroth,     694,     2289, 
2290,    3028,    3687,    3726,    3968. 

v.  Cook,  562. 

v.  Gardner,  32,  61,  928. 

v.  Obenroth,  3960. 

v.  O'Brien,  2585. 

v.  Pierson,  1919,  2629,  3001,  3747. 
Durell  v.  Mosher,  2195. 
Durfee  v.  Eveland,  2350. 

v.  McCall,  2938. 
Durgin  v.  Ireland,  408. 
Durham  v.  Chapin,  88,  885,  915. 

v.  Durham,  4128. 
Durkin  v.   Sharp,  2559. 
Durnherr  v.  Rau,  382,  383. 
Durrant  v.  Abenroth,  3687. 
Durst    v.     Ernst,     3192,     4164,     4173, 

4176. 
Duryea  v.   Fuechsel,   2813,   3846. 

v.  Traphagen,    224. 

v.  Vosburgh,  2691. 
Duryea,  Watts  &  Co.  v.  Rayner,  896, 

1443,   1452,   3845. 
Duryee  v.  Botsford,  3069,  30S6,  3098, 

31S9. 
Dusenberry  v.  Woodward,  1705. 
Dusenbury      v.      Dusenbury,      1631, 
3324. 

v.  Fisher,  2761. 
Dusseldorf  v.   Redlich,  1507. 
Dutcher   v.   Wilgus,    2574. 
Dutton  v.  Smith,  641,  2829. 
Duval   v.   Busch,   658,   823,    887.    1023, 

1048. 
Duvckinck  v.   New  York  El.   R.   Co., 

1023. 
Duygan  v.  Third  Ave.  R.  Co.,  2329. 
Dwight  v.   Cutting,   2239. 

v.  Dada,  271. 

v.  Germania    Life    Ins.    Co..    862, 
866,   874,   876. 

v.  Northern  Indiana  R.  Co.,  1608. 

v.  St.  John,  641,  2570. 
Dwight's  Case,  571. 
Dwinelle  v.  Edey,  469. 

v.  Howland,    1728,   1761. 
Dwyer  v.  Hoffman,  2626. 

v.  McLaughlin,   1896. 

v.  Rorke,  3747. 
Dyckman  v.  City  of  New  York,  2007. 

v.  McDonald,  3002. 
Dyer  v.  Dunnivan,  1883. 


TABLE  OP  CASES. 


4221 


[references  are  to  pages.] 


Dyer  v.  Dyer,  2642. 

v.  Kratzenstein,  4056. 
Dyett    v.    Hyman,    1544,    1545,    1553, 
2111,  3195. 
v.  Seymour,  875. 
Dygert  v.  Crane,  80. 

v.  Pletts,  3244. 
Dyke  v.  Spargur,  3869. 
Dykman    v.   United   States   Life   Ins. 
Co.,  2152. 

E. 

E ,  Matter  of,  253. 

Eads    v.    Wynne,     3206,    3211,    3212, 

3214. 
Bagan  v.  Kergill,  4S5. 

v.  Moore,  1995. 

v.  New  York  Transp.  Co.,  70. 
Eagle  v.  Alner,  2660. 
Eagle  Iron  Works,  Matter  of,   1632. 
Eagleson  v.  Clark.  2931. 
Eagleston  v.  Son,  919. 
Earl  v.  Camp,  1416. 

v.  Campbell,  2123. 

v.  Collins,   2364,   4039. 

v.  Lefler,  2218. 
Earle  v.  David,  88. 

v.  Earle,   673,   6S0,  4099. 

v.  Gorham   Mfg.    Co.,    3130,    3908. 

v.  Hart,  430. 

v.  Quinn,  3325. 

v.  Robinson,  2762. 

v.  Willard,  3128. 
Earley  v.  St.  Patrick's  Church  Soc, 

2839. 
Earll  v.   Chapman,   668,   4000. 
Early  v.  Bard,  2820. 

v.Whitney,  4061,  4172. 
East  River  Bank  v.  Kidd,  290. 
East  River  Sav.  Inst.  v.  Barrett,  495. 
Eastburn  v.  Kirk,  2904,  2925. 
Easterbrook  v.   Easterbrook,  765. 
Easterly  v.  Barber,   390S. 
Eastern    Nat.    Bank    v.     Brunswick 
Chemical  Works,  1683,  1684. 

v.  Hulshizer,  3328. 
Eastern    Plank   Road    Co.    v.    Vaug- 

han,  380. 
Eastgate  v.  Hunt,   2864. 
Eastham    v.    N.    T.    State    Tel.    Co., 

4101. 
Eastman  v.  Caswell,  1421. 

v.  Gray,  2932. 

v.  Starr,  1580. 

v.  Tuttle,  2701. 
Easton  v.  Booth.  352. 

v.  Cardwell,  1293. 

v.  Cassidy,   1295,   1318. 

v.  Malavazi,  1398,  1515. 

v.  Plckersgill,  641,  3243. 
Easton  Nat.  Bank  v.  Buffalo  Chem- 
ical Works,   3384.   3386,   3388.   3390. 
Eaton  v.  Alger,  384,  385,  410,  3872. 

v.  Benton,  2649. 

v.  Burnett,  1079. 

v.  Hall,  4067. 

v.Wells,   1014.  1084,  2380. 

v.  Wyckoff,  1914. 
Ebbets  v.  Martine,  425,  427,  1057. 
Ebenreiter    v.    Dahlman,    1548,    2345. 
Eberhardt  v.  Schuster.  1831. 
Eberle  v.  Krebs,  791. 
Ebfrsole  v.   Northern  Cent.  Ry.   Co., 
2356. 


Eberspacher  v.  Boehm,   2836. 
Ebner  v.   Bradford,  1389. 
Eckenroth  v.  Egan,   1699. 
Eckert  v.   Gallien,   972,  1008. 
Eckes  v.  Stetler,  4158. 
Eckhard  v.   Jones,   1688. 
Ecles  v.  Debeand,  2126. 
Eddy    v.    Co-operative    Dress    Ass'n, 
1633. 

v.  Davis,  2012 

v.  O'Hara,  2010. 
Eddy's  Estate,  Matter  of,  432. 
Edelstein  v.   Goldfleld,   4142. 
Edgerley    v.    Long    Island    R.     Co., 

3832. 
Edgerton  v.  Page,  976. 
Edick  v.  Gree.n,  1432,   1440,  1446. 
Edison     v.     Press     Publishing     Co., 

4118. 
Edison   Electric   Illuminating  Co.   v. 
Guastavino  Fire  Proof  Const.  Co., 
1409,   1482. 
Edison  Mfg.  Co.  v.  Hazard,   1787. 
Edlefson  v.  Duryee,  2936. 
Edlunds,  Matter  of.  3351. 
Edmeston  v.   Lyde,    3412,    3415,   3419. 
Edmonds  v.   Stern,  4115. 
Edmondstone  v.   Thomson,   497. 
Edmonston    v.    McLoud,    1560,    3297, 

3418,  3419,  3902. 
Edmonstone  v.  Hartshorn,  1810. 
Edsall  v.  Vandemark,  2051. 
Edson  v.  Girvan,  1001. 

v.  Weston,  1477. 
Edward  Barr  Co.  v.  Kuntz,   2S51. 
Edwards  v.  Berkshire  Life  Ins.  Co., 
2202. 

v.  City  of  Watertown,   2078. 

v.  Downs,  884. 

v.  Lent,  951,   952. 

v.  McLean,  2292. 

v.  Ninth  Ave.   R.  Co.,  1922. 

v.  Shreve,  4056,  4057,  4083. 

v.  Woodruff,  2095. 
Eells  v.   Dumary,   4108,   4109. 
Effray  v.  Masson,   2260. 
Egan  v.  Dry  Dock,  E.  B.  &  B.  R.  Co., 
2249. 

v.  Laemmle,  50. 

v.  Lynch,  326. 

v.  Rooney,  261. 

v.Walsh,  1625. 
Eggers  v.  Manhattan  Ry.  Co.,   2156, 

2157. 
Eggler  v.  People,  2341. 
Eggleston  v.   Beach.    1027. 
Ehle  v.  Bingham,  3029. 

v.  Haller,  823. 

v.  Quackenboss,  2908. 
Ehlein  v.  Brayton,  1040. 
Ehlers  v.  Willis,  2968. 
E.   H.    Ogden    Lumber  Co.    v.   Busse, 

3861. 
Ehrenfried   v.    Lackawanna   I.    &    S. 

Co.,  4106. 
Ehrenreich  v.  Lichtenberg,  2957. 
Ehrman  v.  Rothschild,  2686. 
Ehrmann    v.    Nassau    Elec.    R.    Co., 

2285. 
Eichberg  v.  Wickham,  2585. 
Eidlitz  v.  Doctor,   3218. 

v.  Rothschild,    991,    1089. 
Eighmie  v.   Strong,   2639. 

v.  Taylor,  1027. 


4222 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


Eighmv  v.  People,  25S0. 

Einson     v.     North      E^iver     Electric 

Light  &  Power  Co.,  1086. 
Einstein   v.    Climax  Cycle   Co.,   1437, 
1439. 

v.  General     Electric     Co  ,     1735, 
1750. 
Eiseman  v.  Heine,   2321. 
Eisemann  v.  Swan,  23G0,  276!). 
Bisenbud  V.   Gellert,   1507. 
Eisenhofer  v.   New  Yorker   Zeitung 

Pub.   &   Print.  Co.,    4087. 
Eisenlord  v.   Clum,    (915,   1916,   2128. 
Eising  v.  Young,  16S7. 
Eisner  v.   Eisner,   1063. 

v.  Hamel,  2960. 
Eisners'  Estate,  Matter  of,  3989. 
Elder  v.  Bogardus'  Ex'rs,  1851. 

v.  Morrison,  3195. 
Eldredge  v.  McNulty,  4019. 
Eldridge,  Matter  of,  250,   254. 
Eldridge  v.  Adams,   26. 

v.  Bell,  1005. 

v.  Chapman,  1772. 

v.  Kenning,  464. 

v.  Strenz,  2902. 

v.  Underhill,  4003. 
Electric    Boat    Co.    v.    Howey,    2771, 

2811,   2817,   3899,   4120,    4165. 
Electric    Equipment    Co.    v.    Feuer- 

licht,  4105. 
Eleventh  Ave.,  Matter  of,  3156,  317£. 
Eleventh    Ward    Bank    v.    Heather, 
3279,  3289,  3299,  3301. 

v.  Powers,  773,  882. 
Eleventh    Ward   Sav.    Bank   V.   Hay, 

1699. 
Elias  v.   Farley,    3116,   3117. 
Elfers  v.  Woolley,  2326. 

v.  Schweyer,   60,   928. 
Elizabethport  Mfg.  Co.  v.  Campbell, 

1047. 
Elkin  v.  Elkin,   2022. 
Ellensohn   v.   Haselbach,   1903. 

v.  Keyes,    2151,    2160,    2162,    3633. 
Ellenstein  v.  Klee,  2009. 
Ellett  v.  Young,   4142. 
Elliot  v.  Cronk's  Adm'rs.  356,  518. 

v.  Lewickv,  2946. 
Elliott  v.  Brown,  2333. 

v.  Kennedy,  661,  663. 

v.  Luengene,     2226,     2350,     272?, 
3969. 

v.  Smith,  969. 

v.  Van  Schaick,  2295. 

v.  Wood,  1885 
Ellis  v.  Baker,   358. 

v.  Jones,   562,  574,  2828. 

v.  People,  2345. 

v.  Salomon,  3897. 

v.  Van  Ness,  940. 
Ellison  v.  Bernstein,  1437. 
Ells  v.  Tousley,  2799,  3150. 
Ellsworth  v.  Aetna  Ins.  Co.,   2339. 

v.Brown,    2126,    2127,    2586. 

v.  Franklin     County     Agr     Soc, 
4114. 

v.  Lockwood,  3228. 

v.  Scott,    1503,    1510. 

v.  Thompson,   2863. 
Elmendorf    v.    Lansing,    679. 
Elmira   Realty   Co.    v.    Gibson,    3845, 

3945,  4172. 
Elmore   v.    Hyde,    1792,    1795. 


Elnore   v.   Thomas,    2571. 
Elsey   v.   International    R.   Co.,   2863, 
2866. 
v.  Me  teal  f,    2736. 
Elson  v.  Murray,  3770,  4001. 
Elster   v.    Goodyear,    4020. 
Elsworth    v.    Hinton.    1831. 

v.  Muldoon,    3163. 
El  Tazi  v.  Stein,  1786. 
Elting  v.  Dayton,  1027,  1040,  1048. 
Elton  v.  Markham,  951,  1064,  2370. 
Elwell   v.   Bender,   139. 
v.  Chamberlin,   2203. 
V.  Dodge,   2229. 
v.  Robbins,   16. 
V.Russell,    1291,    1320,    1325. 
V.  Skiddy,    969. 
Elwin   v.   Routh,   1880. 
Elwood  v.  Gardner,  922,  3200. 
v.  Roof,    1075. 

v.  Western  Union  Tel.  Co.,   3890. 
Ely   v.    Adams,    2289. 

v.  Cooke,    304,    914,    2884. 
v.  Lowenstein,    349,    409,    1560. 
v.  McNight,    2728. 
v.  Mumford,   1345. 
v.  Spiero,    2006,    2009. 
Embree  v.  Hanna,  52. 
Emerald  &  Phoenix  Brewing  Co.  v. 

Leonard,   43. 
Emerick  v.  Metropolitan   St.  R.   Co., 

1688. 
Emerson   v.  Auburn  &  O.  L.   R.   Co., 
585,   743. 
v.  Bleaklev,    1036,    2072,    208S. 
Emery  v.   Baltz,   830,  944. 
V.  Emery,    3272. 
v.  Erskine,    404. 
v.  Pease,  927. 
Ernes   v.   Fowler,   3111. 
Emigrant      Mission      Committee      v. 

Brooklyn  El.  R.  Co.,   3758. 
Emmeluth  v.  Home  Ben.  Ass'n,  408. 
Emmens   v.   McMillan   Co,    3632. 
Emmerich  v.  Hefferan,   2711,  3898. 

V.  Thorley,   2287. 
Emmet,  Matter  of,   16. 
Emmet's  Adm'rs  v.  Bradstreet,  3182. 
Emmons  v.  New  York  &  E.   R.   Co., 

2976. 
Empire    Bldg.    &    Mut.    L.    Ass'n    V. 

Stevens,   2638. 
Empire    City    Sav.    Bank    v.    Silleck, 

4089. 
Empire   City  Subway  Co.   v.  Broad- 
way &  S.  A.  R.  Co..  3014. 
Empire   Dairy  Feed  Co.  v.   Chatham 

Nat.    Bank,    977. 
Empire     Hardware     Co.     v.     Young, 

3666. 
Empire    State    Sav.    Bank   v.    Beard, 

420,    423. 
Empire     State     Telephone    &    Tele- 
graph  Co.   v.   Bickford,   2559,    2561. 
Empire  Trust  Co.  v.  Devlin,   4166. 
Empire    Warehouse    Co.    v.    Mallett, 

1400,   1434. 
Enebak   v.    Thurber,    1765. 
Engberman  v.  North  German  Lloyd 

S.  S.  Co.,  2968,  2970. 
Engel  v.  Fischer.  507. 
Engel,    Heller    Co.    v.    Henry    Elias 

Brew.  Co.,  3712. 
Engelage  v.  Raymond,  1291. 


TABLE  OF  CASES. 


4223 


[references  are  to  pages.] 


Engelhardt   Co.,  A.   F.   v.   Benjamin, 

1315. 
Englis  v.   Furniss,   1036. 
English  v.   Steele,   2215. 

v.  Westchester  Electric  Ry.  Co., 
867. 
Ennis  v.  Broderick,  3183. 
v.  Currie,   290. 
v.  Curry,   259,   294,   304. 
v.  Untermyer,    4132,    4134. 
v.  Wilder,    3955. 
Eno   v.   New  York   El.    R.   Co.,   3747, 

3756. 
Enoch  v.  Ernst,  1302. 
Enos  v.  Thomas,  411,  2573,  2629,  3724. 
Enright  v.   Shalvey,   2992. 
Ensign    v.    Dickinson,    825. 
v.  Ensign,   2250. 
v.  Hooker,  2345. 
v.  Nelson,   1297,   1344. 
v.  Sherman,    821,    824. 
Episcopal    Church    of    St.    Peter    v. 

Varian,   396,   678. 
Epstein  v.  United  States  Fidelity  & 
Guaranty      Co.,      687,      1457,      1458 
1459, 
Equitable      Co-operative       Foundry 

Co.   v.   Hersee,   45. 
Equitable   Life   Assur.    Soc.   v.    Cuy- 
ler,  984. 
v.  Hughes,    2990. 
v.  Schermerhorn,    72. 
Erben    v.    Lorillard.    2276. 
Erhard    v.    County    of    Kings,    2593, 

Erickson  v.   Quinn,   30S6,   3385,   3388, 
3420,   3432. 
v.  Twenty-third      St.      Ry.      Co., 
22S2. 
Erie   Malleable  Iron   Co.,  Matter  of, 

1782. 
Erie   R.   Co.   v.   Champlain,   579,    581. 
v.Gould,    579,    580,    582. 
v.  Ramsey,    14,    640,    1589,    3958. 
v.  Stewart,    3642. 
Ernst    v.    Estey    Wire    Works    Co., 
2249,    2271,    3832. 
v.  Hudson    River    R.    Co.,     2282 
2290. 
Ervin    v.    Oregon    Ry.    &    Nav.    Co., 
816,    1854. 
v.  Oregon    Steam   Nav.    Co..    743. 
Erving  v.  City  of  New  York,   647. 
Erwin  v.  Voorhees,  1736. 
Esmond   v.    Seeley,    2282. 
Ess  v.  Toplanyi,   1502. 
Essex    County    Nat.    Bank   v.    John- 
son,  1441,    1444. 
Estel  v.  De  Pennevet,  1283. 
Estes  v.   Dean,   2565. 

v.*Wilcox,   3390. 
Estus  v.   Baldwin,    3910. 
Esty  v.   Trowbridge,  279. 
Etherington  v.   Prospect  Park  &   C. 

I.  R.  Co.,   2347. 
Ettenson  v.   Schwartz,   1424. 
Eustace  v.  Tuthill,  2909. 
Evans  v.  Backer,  108,  650,   3778. 

v.  Board   of   St.    Com'rs    of    City 

of  Hudson,  1012. 
v.  Cleveland,    514. 
v.  Ellis,  2021. 

v.  Ferguson,     2968,     2971,     2975, 
2982. 


Evans  v.  Harris,  248,  673. 

v.Holmes,    1321,    1343,    1345. 

v.  Howell,   2380. 

v.  Kalbfleisch,    2562,    2574. 

v.  Lichtenstein,   663. 

v.  National       Broadway       Bank, 

4157. 
v.  Olmstead,    1048,   1663. 
v.  Silbermann,    2966,    2975,    3036, 

3801. 
v.  United     States     L.     Ins.     Co., 

2730,   2731. 
v.  Van  Hall,  641. 
Evans'  Will,  Matter  of,  3833,  3976. 
Evarts  v.  Burton,  2311. 

v.  United  States  Mut.  Ace.  Ass'n, 
1035. 
Everall   v.   Lassen,    3956. 
Everard  v.  Brennan,   3259. 
Everett  v.  De  Fontaine,   4107. 

v.  Everett,    764,    812,    1040,    4173. 
v.  Peyton,  3403. 
Everingham   v.   Vanderbilt,    3436. 
Everitt   v.    Park,    1446,    1519.    3857. 
Everson    v.    Carpenter,    2256. 
v.  Gehrman,   3946. 
v.Johnson,    3218,    3230. 
v.  McMullen,   2910,   2926. 
Evertsen  v.  Sawyer,  3113,  3148,  3153. 
Evoy  v.  Expressmen's  Aid  Soc,  717. 

796. 
Ewart  v.    Schwartz,   1302. 
Excelsior    Brick    Co.    v.    Village    of 

Haverstraw,    3S69. 
Excelsior   Fire    Ins.    Co.,    Matter   of, 

652. 
Excelsior  Needle  Co.  v.  Globe  Cycle 

Works,    3104,    3105. 
Excelsior   Steam  Power  Co.   v.   Cos- 
mopolitan   Pub.    Co.,    1409,    1469. 
Exchange    Bank    v.    Monteath.    1826. 
Exchange    Fire    Ins.    Co.     v.    Early, 
2605. 
v.  Norris,    2009. 
Exchange    Nat.    Bank    v.    Marshall, 

2299. 
Exkorn  v.   Exkorn,   472,  494,   496. 
Exstein    v.    Robertson,    2121. 
Eypert  v.   Bolenius,   1306,   1326. 

F. 

Fabbricotti   v.   Launitz,   1918. 
Faber  v.  Van   Tassell,   2973. 
Fagan  v.   Knox,   2271. 

v.  Strong,   832,   850,    1897,   1900. 
Faherty    v.    Schuyler    Steam    Tow- 

Boat  Line,  1950. 
Fahr  v.  Manhattan  Ry.  Co.,  904. 
Fairbank   Co.,   N.   K.,   v.    Blant,    951. 

953. 
Fairbanks  v.   Bloomfield,  1413,  1546. 
Fairchild,  Matter  of,  3855. 
Fairchild   v.    Case,    3211. 

v.  Edson,    36S9. 

v.  Fairchild,   3237. 

v.  Feltman,    382. 

v.  Lynch,  953. 
Fairman   v.    Brush,   2643. 
Fairmount  Coal  &  Iron  Co.  v.  Has- 

brecht,   1021. 
Fairweather  v.  Satterly,  2041. 
Faist    v.    Metropolitan    St.     R.    Co., 
4154. 


4224 


TABLE  OF  CASES. 


[REFERENCES   ARE   TO   PAGES.] 


Faith  v.  Ulster  &  Delaware  R.  Co., 

1813. 
Faivre    v.    Union    Dime    Sav.    Inst., 

Fako-%.    Edgerton,    1369,   2026,   2171, 

3096,   3205. 
F.   A.    Kennedy   Co.    v.    McCormack, 

18S7. 
Falconer  v.  Freeman,    1496. 

v.  Ucoppell,    662. 
Fales,  Matter   of,   3235. 
Fales  v.  Globe  Knitting  Co.,  2777. 
v.  Hicks,    950,    1075. 
v.  Lawson,    2848. 
Falkel  v.  Moore,  2924. 
Falkenberg   v.    Bash,    2009. 

v.  Frank,   321,   3325. 
Falker  v.  New  York.  W.  S.  &  B.  Ry. 

Co.,  649. 
Fall    Brook    Coal    Co.     v.     Hewson, 

2263,    2345. 
Faller  v.   Ringer,   4100. 
Fallon  V.  Durant,  952. 

v.  Egberts      Woolen      Mill      Co., 

2556. 
v.  Farber,    2008,    2013. 
v.  Lawler,    3907. 
v.  McCunn,   1414. 
Faltiska  v.   New   York.   L.   E.   &    W. 

R.  Co.,  744. 
Faneuil  Hall  Nat.  Bank  v.  Bussing, 

3361,    3366. 
Fanger  v.  Caspacy,   4107. 
Fanning  v.  Dunham,  1600. 

v.  Supreme   Council    of    Catholic 
Mutual     Benevolent     Ass'n, 
1862. 
Fareira  v.   Smith,   2303. 
Fargo  v.   McVicker,   177,   3632. 

v.  Paul,    274. 
Farish   v.   Austin,   85,   2843. 
Farleigh   v.    Cadman,    3918. 
Farley  v.   Stowell,  2658. 
Farmer  v.  National  Life  Ass'n,   789, 
808,  811,  1787. 
v.  Robbins,  1314,   1341. 
Farmers'   Bank  of  Saratoga  County 

v.  Merchant,  3148. 
Farmers'    Bank    of   Washington    Co. 

v.  Cowan,   2271. 
Farmers'  Loan  &  Trust  Co.  V.  Bank- 
ers'  &   Merchants'   Tel.    Co., 
128,  1415,  1485,  3231,   3667. 
v.  Carroll,   2682. 
v.Dickson,  720,  728,   784,  1337. 
v.  Erie   Ry.   Co.,    2051. 
v.  Hotel     Brunswick     Co.,      833, 

1629. 
v.  Kursch,    2949. 

V  New  York  &  N.   Ry.  Co.,  2381. 
v  Siefke,    953,    1722,    2223,    2331. 
v.  Southern    Tel.    Co..    126. 
v.  United  Lines  Tel.  Co.,  1053. 
v.Walworth,    2020. 
Farmers'     Nat.     Bank     v.     Houston, 
2569,   2572. 
v.  St.   Regis  Paper   Co.,   4114. 
v.  Underwood,     621,     632,      1039, 

1040,   1782. 
v.  Williams,   716. 
Farmers'  &  Citizens'  Bank  v.  Sher- 
man,  2711. 
Farmers'  &  Mechanics'  Bank  v.  Jos- 
lyn,  1032,   2158. 


Farmers'     &     Mechanics'     Bank     v. 
Smith,  1078. 
v.  Wadsworth,    827. 
Farmers'    &   Mechanics'    Nat.    Bank, 
v.    Crane.    3206. 
v.  Rogers,   1075. 
v.  Sprague,   1344. 
Farmers'    &    Merchants'    Nat.    Bank 

v.  Rogers,  1002. 
Farmers'    &  Merchants'   State   Bank. 

v.  Stringer,  724. 
Farnam   v.   Barnum,    416,    417. 
Farnham  v.   Benedict,   3632. 
v.  Campbell,  3405. 
v.  Hildreth,    795,    3093,    3142. 
Farnsworth  v.  Halstead,  824,  1991. 
v.  Western   Union    Tel.    Co.,   126, 

639,    1648.    1919. 
v.  Wilson,   946.  1064. 
Farquaharson  v.   Kimball,   3257. 
Farquhar    v.    Wisconsin    Condensed' 

Milk  Co.,  1385,  1390. 
Farrand   v.    Herbeson,    1022. 
Farrell  v.  Amberg,  S30,  904,  910,  988. 
v.  Higley,  1418. 
v.  Hildreth,    3114. 
v.Hill,    2911. 
v.  Krone,    976. 
v.  Manhattan  R.  Co.,  3906. 
v.  New    York    Juvenile    Asylum 
1912. 
Farrell  Foundry  &  Mach.  Co.  v.  An- 
vil Horse  Shoe  &  Nail  Co.,  2560. 
Farrington     v.     American     Loan     & 
Trust    Co.,    921. 
v.  Birdsall,    1560. 
v.  Caswell,   3117. 
v.  Muchmore,  755. 
v.  Sinclair.  3117. 
Farrow  v.  Holland  Trust  Co.,  74. 
Farwell    v.    Importers'    &    Traders' 

Nat.    Bank,    85,    2150. 
Fash  v.  Byrnes,   2701. 
Fasnacht  v.   Stehn,  834,  1066. 
Fassett     v.     Tallmadge,     322,     1289,. 

1639. 
Fasshender  v.  Western  Transit  Co., 

2348. 
Fassin   v.    Hubbard,    1765. 
Fatman  v.  Fatman,  1787,  1796,  1803. 
Faulkner  v.  Cody,   1921. 

v.  Hart,   117. 
Fawcett   v.   Fawcett.    787. 

v.  Vary,    2790. 
Faxon  v.  Mason,  620,  621,  1421,  2951. 
Fay    v.    Brooklyn    Heights    R.    Co., 
2284. 
v.  Grimstead,   1033. 
v.  Hauerwas,    949,   965,   1088. 
v.  Hebbard,   265. 
v.  Lynch,    3762. 
v.  O'Neill,    2338. 
Fayerweather  v.   Tucker,   2852. 
Fealy  v.  Bull,  2196,  2702. 
Fearing  v.   Irwin,   36,   37. 
Fearn  v.  Gelpcke,   1896. 
Feder  v.  Samson,  1073. 
Feeley   v.   Wurster,    906,    1006,    101?. 
Feeney  v.  Brooklyn  City  R.  Co.,  32. 
Feerick  v.   Conner,   3211. 
Feeter    v.    Arkenburgh,    2564,    25G5, 
v.  Harter,    2574. 
v.  Heath,    2238. 
Feiber  v.  Lester.  2666. 


TABLE  OF  CASES. 


4225 


[REFERENCES   ARE   TO   PAGES.] 


Feier    v.    Third    Ave.    R.    Co..    1873, 

1874,    1877. 
Feinberg    v.    American    Surety    Co., 

431. 
Feist  v.  City  of  New  York,   823. 

v.  Schiffer,  382. 
Feitner  v.  Lewis,  740. 
Feldman    v.    Grand   Lodge,   A.   O.   U. 
W.,  1866. 
v.  McGraw,   2229,  3872. 
Feldmark    v.    Weinstein,    2836. 
Felice   v.    New  York  Cent.    &   H.   R. 

R.  Co.,   2347. 
Felix  v.   Van   Slooten.   1027. 
Fellerman's  Case,   3257. 
Fellows  v.   Fellows,   1560. 

v.  Heermans,   1561,   1570,    1627. 
v.  Kittredge,    2S36. 
v.  Muller,  1077. 
v.  Niver,  92. 
Felt  v.  Dorr.  3276. 
v.  Hyde,    573. 
v.  Nichols,    273,    276,    277. 
Felts  v.  Clapper,  2205. 

v.  Collins,    2696. 
Fenlon  v.  Dempsev,  1S09,  2606,  2649. 

v.  Paillard,   4172. 
Fennell  v.  Black,   497. 
Fenner  v.   Sanborn,   3307,   3361. 
Fenno  v.  Hannan,   2288. 
Fenton  v.   Flagg,   3185,   3278. 

v.  Folger,  3103. 
Fenwick   v.   Mitchell,    298,    2151. 
Ferguson,  Ex>  parte,  287. 
Ferguson  v.  Ann  Arbor  R.  Co.,  3414. 
v.  Bruckman,   2645,   2820,   3846. 
v.  Crawford,    2756. 
v.  Jones,    612. 
v.  Lee,  3105,  3114,  3129. 
v.  Neilson,    131. 
v.  Wooley,  3037. 
Fern   v.   Vanderbilt,    837. 
Fernandez    v.    Fernandez,    60. 
Fernbacher's      Estate,      Matter      of, 

3986. 
Ferner  v.  Williams,  81,  852. 
Ferran   v.    Hosford,    138.    139. 
Ferrigan's   Estate,   Matter    of,    2599. 

2605. 
Ferrin   v.    Huxley,    4151,    4152. 

v.  Myrick,   75. 
Ferris,  Matter  of,  592. 
Ferris  v.   Aldrich,    2244. 
v.  Betts,    2936. 
v.  Hard,    911,    914,    1709. 
v.  Plummer,  756,  1386. 
v.  Soley,    882. 
v.  Tannebaum,    1330. 
Ferriss   v.    American   Ins.    Co.,    1888. 
Ferry     v.     Bank     of     Central     New 
York  1578,   2115,  3790. 
v.  Sampson,  3233. 
Fessenden  v.  Blanchard,  1891. 

v.  Woods,   3377. 
Fetes  v.  Volmer,   767,   772. 
Fett  v.  Greenstein,  4112. 
Fettretch  v.  McKay.   1072,  1076. 
Ffansioli   v.  Boorman,   1912. 
F.  Garia  Bro.  &  Co.  v.  Solomon,  1784. 
Fidelity  Glass  Co.  v.  Thatcher  Mfg. 

Co.,    4098. 
Fidelity    &    Casualty    Co.    v.    F.    W. 
Seagrist,  Jr.,  Co.,   1820,   1845,  4145. 

N.  Y.  Prac—  265. 


Fiebiger  v.    Forbes,   4101. 
Field,    Matter   of,    772.    3236. 
Field  v.  Chapman,   1594,   3393. 
v.  Field,   635,   2956,  3084. 

v.  Gibson,    133. 

v.  Hawxhurst,   1036. 

v.  Hunt,  3393. 

v.  Ingreham,   1416,   1431. 

v.  Leavitt,    3734. 

v.  Morse,   1024. 

v.  New    York   Cent.    &  H.   R.    R. 
Co.,  867. 

v.  Park,   104,   664. 

v.  Ripley,    1628. 

v.  Sands,    3262,    3418. 

v.  Surpless,    2306. 

v.  Van   Cott,   411. 

v.White,    3641,    4177. 
Fielden   v.    Carelli,   1016. 

v.  Lahens,   1709,    1767,   2596. 
Fielding  v.   Cohoes  Masonic  Temple 

Ass'n,   1934. 
Fieldings    v.    Mills,    2000. 
Fields  v.  Bland,  1282,  2889. 
Fielmann   v.  Brunner,   1482. 
Fiero   v.   Betts,   3149. 

v.  Paulding,   2559. 
Fiester   v.   Shepard,   3975,    3989. 
Fifth  Ave.   Bank  v.  Fortv-Second  & 
G.   St.  Ferry  R.   Co.,  2724. 

v.  Webber,    2674. 
Filer,  Matter  of,   673. 
Filer  v.  New  York  Cent.   R.   Co.,  56, 

2241. 
Fillmore  v.   Horton,   3363. 
Finan  v.  O'Dowd,  517. 
Finch   v.   Calvert,   2985. 

v.  Carpenter,    88,    3663. 

v.  Galigher,   732. 
Finck  v.  Mannering,    197,  3268. 

v.  Schaubacher,    2327. 

v.  Stachelberg,    2968. 
Fincke,  Matter  of,  286. 
Fincke  v.   Funke,    503,   1647. 
Fine  v.  Interurban   St.  R.   Co.,   4158, 
4160. 

v.  Righter,   2092. 
Finegan   v.  Eckerson,   543,   1576. 
Finelite  v.  Finelite,  605. 

v.  Sonberg,    1375. 
Finger  v.   City  of  Kingston,   834. 
Fink  v.   Allen,    50. 

v.  Bryden,   2866. 

v.  Fraenkle.    1415,    3338. 

v.  Jetter,    863. 

v.  Justh,    963. 

v.  Manhattan   Ry.    Co.,   1042. 

v.  Shoemaker,  183. 
Finkel  v.  Kohn,  3048. 
Finkelstein  v.  Barnett,   2200. 

v.  Meenan,    2105. 
Finkemaur  v.   Dempsey,   3041. 
Finlay  v.  Cook,  462. 

v.  De    Castroverde,    1316. 
Finlayson  v.  Wiman,   2765. 
Finn  v.  Lally,   468. 

v.  Peterson,  2287. 
Finnin  v.  Malloy,  1419,  1421,  3262. 
Finton   v.  Eggelston,   499. 
Fire    Department    v.    Buffum,    649. 

v.  Wendell,    3704. 
First    Baptist    Church    v.    Brooklyn 
Fire  Ins.   Co.,   2256,   2259. 


4220 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


First    General,    etc.,    Baptist    Soc.   v. 

Loom  is,   29  It;. 
First     Nat       Hank,    Matter    of.    32S5, 

3287,   3298. 
First   Nat.    Bank  v.   Anderson,   2027, 
2033. 

v.  Ballou,    52S,    531. 

v.  Beardslev,    3265,    3332. 

v.  Bissell,  506. 

v.  Bush,   3007. 

v.  Bushwick     Chemical     "Works. 
1385,    1401,    1461,    1520. 

v.  Carleton,    2884. 

v.  Clark,  606,  641,  645,  2718,  2741. 

v.  Clarke,    951. 

v.Dana,    2294,    2313. 

v.  Dering,    3103,    3184,    3292. 

v.  Dow,    279S. 

v.  Dunn,  3107. 

v.  Fourth    Nat.    Bank,    3968. 

v.  Hall,  1906. 

v.  Hamilton,   170,  605. 

v.  Heaton,  2231. 

v.  Lenk,  398,  2095. 

v.  Levy,  2599,   2643. 

v.  McConnell,    2296. 

v.Martin,    3331,    3338,   3361. 

v.Navarro,    1648,    3374. 

v.  Ranger,    940. 

v.  Robinson,   4091. 

v.  Shuler,    717,    2080,    2095,    2097, 
3418,    3420. 

v.  Slattery,    984,    1076,    1077. 

v.Wallace,      1434,      1449,      1450, 
1522. 

v.  Washburn,    1649,    2930,   2952. 

v.  Weston,    2262. 

v.  Wilson,    3285,    3296. 

v.  Wright,    1009. 

v.  Yates,   1884,    3343,   3344. 
First  Soc.  of  M.  B.  Church  v.  Rath- 
bun,   270. 
Firth  v.   Rehfeldt,   2664. 
Fischer  v.   Blank,    2727. 

v.  Fischer,  132. 

v.  Hetherington,    271,    795,    3089, 
3194. 

v.  Hope  Mut.  Life  Ins.  Co.,  3704. 

v.  Langbein,    248,    249,    765,    793, 
3965. 

v.  Raab,   3049. 
Fischer-Hansen  v.  Brooklvn  Heights 
R.  Co.,  299,   300,   306,   4065. 

v.  Stierngranat,    861.    870. 
Fish   v.  Coster,   2903. 

v.  Fish,    1938. 

v.  Folley,  55. 

v.  Wing,    1887,    1894. 
;Fisher  v.  Banta,  2579. 

v.  Bennett,   2958. 

v.  Bloomberg,    538. 

y.  Charter     Oak     Life    Ins.     Co. 
996,   1001. 

v.  City  of  New  York,  956. 

v.  Corwin,   2730. 

v.  Curtis,    13S2. 

v.  Dale,   1734. 

v.  Dougherty,    1525. 

v.  English,   2995. 

v.  Fredenhall,    2766. 

v.Gould,     120,     617.     1016,     1017, 
3898. 

v.  Gunn,  1663. 


Fisher  v.   Hepburn,   606.        ' 

v.  Hersev,  3227,   3228,   3231,  3232. 

v.  Hubbell,  2579. 

v.  Hunter,    2975. 

v.  Louny,    3207. 

v.  Luling,    138. 

v.  Lyon,   2046. 

v.  Monroe,  2334. 

v.  Nash,   1386. 

v.  Ogden,   919,   930,  1949. 

v.  Rankin,  1034. 

v.  Stilson,   34,   89. 
Fisher  Malting  Co.   v.   Brown,    2124, 

4156. 
Fisher  Textile  Co.  v.   Perkins,  4070. 
Fishkill  Sav.  Inst.  v.  National  Bank 

of  Fishkill,   981. 
Fisk    v.    Albany    &    S.    R.    Co.,    1057, 
1964. 

v.  Bennett,   754. 

v.  Chicago,    R.    I.    &    P.    R.    Co., 
578,   579,   581,   582. 

v.  Spring,    1478. 
Fiske   v.    Anderson,   780. 

v.  Smith,    3634. 

v.  Twigg,    650,    3324. 
Fiss    v.    Haag,    3329. 
Fitch  v.  Armour,  2281. 

v.  Baldwin,    3044. 

v.  Devlin,    3602,    4010. 

v.  Gardenier,    264. 

v.  Hall,    1964. 

v.  Hassler,   2292. 

v.  McMahon,    1292,    1295,    1324. 

v.  Smith,    3420. 

v.  Volker     &     Felthousen     Mfg. 
Co,   2565. 
Fitchburgh  Nat.   Bank  v.  Bushwick 

Chemical    Works,    3257,    3260. 
Fitchett  v.   Murphy,   1851. 
Fitgerald  v.  Blake,   1476. 
Fithian,   Matter  of,    2380.   2381. 
Fitton  v.  Brooklyn  City  R.  Co.,  2693. 
Fitzgerald  v.  Dakin,   4085. 

v.  Deshler,  1565. 

v.  Fachs,    2319. 

v.  Rightmeyer,    991. 
Fitzgibbons   v.    Smith,    3307. 
Fitzhugh  v.   Truax,   562. 

v.  Wiman,    385,    3903. 
Fitzpatrick,   Matter  of,    2072. 
Fitzpatrick  v.  Dorland,  2754,  2928. 

v.  Flagg,   1513. 

v.  Moses,    3363,    3375. 

v.  Woodruff,    2332. 
Fitzsimmons  v.  Curley,  1886,  1897. 
Fitzsimons,  Matter  of,  16,  266. 
Flack  v.  O'Brien,   943. 

v.  Thaxter,    1477. 
Flagg  v.  Cooper,  3059,  3065. 
Flaherty   v.   Cary,   1886. 

v.  Flaherty,    636. 

v.  Greenman,   3907. 

v.  Herring-Hall      Marvin       Safe 
Co.,   48. 
Flake  v.  Van  Wagenen,  631,  3651. 
Flanagan   v.   Flanagan,   1916. 

v.  Tinin,    3076,    3186. 
Flanders  v.   Butten,   3114. 

v.  Odell,  2565. 
Flandreau    v.    Elsworth,    2289,    2300. 
Flandrow,  Matter  of,  1408,  1468. 
Flandrow   v.    Hammond,    2087,    2291. 


TABLE  OF  CASES. 


4227 


[references  are  to  pages.] 


Flanery  v.  Emigrant  Industrial  Sav. 

Bank,    1863. 
Flannery  v.  Geiger,  4063,  4065. 

v.  James,  2026,  2875. 

v.  Van   Tassell,    2668. 
Flatow  v.  Von  Bremsen,   1344,   2777. 

2779. 
Flechter  v.   Jones,   1002,   1003. 
Fleck  v.  Rau,   2665. 
Fleet  v.  Cronin,   1844. 

v.  Kalbfleisch,    2690,    2715. 
Fleig  v.  Gorman,   1551. 
Fleischer    v.    Metropolitan    St.    Ry. 

Co.,   2261. 
Fleischman  V.  Bennett,   1060. 

v.  Yagel,   2743. 
Fleischmann    v.    Bennett,    905,    1052, 
1056. 

v.  Fleischmann,    1829. 

v.  Samuel,    2701.    2730. 

v.  Stern,    912,    913,    1708. 
Fleitman  v.  Sickle,  1401. 
Fleming-     v.     Burnham,      465,      323S 
3234. 

v.  Gilbert,   2688. 

v.  Hollenback,    1728,    1741,    1766, 
2733. 

v.  Supreme    Council    O.    of   C.   F. 
947. 

v.  Tourgee,   3339. 
Fleming-  Cut   Sole  Co.  v.   Garretson, 

2380. 
Fletcher  v.   Cooper,    353. 

v.  Daniels,    523. 

v.  Krupp,   1631. 

v.  McKeon,    334. 

v.  Troy    Sav.    Bank,    1862,    1869. 

v.  Updike,   520. 
Fleury  v.   Roget,   944. 
Flicker  v.    Graner,   2296,    2299. 
Fliess  v.   Buckley,    350. 
Flint  v.  Charman,   1564. 

v.  Gault,   4014. 

v.  Green,    2974. 

v.  Sargent,    1430. 

v.  Van  Deusen,   1898. 

v.  Van   Dusen,   289. 
Flood  v.  Moore,  2986. 

v.  Morrfs,  1930. 
Flor  v.  Flor,  3042. 
Florence   v.    Bates,    1577. 

v.  Bulkley,   1876. 
Florsheim    v.    Musical    Courier    Co., 

4099. 
Flour  City  Nat.  Bank  v.  Doty,  2884 

v.  Hall,    1297. 

v.  Widener,    2282. 
Floyd  v.  Clark,  2801. 

v.  Dutcher,    478. 
Fluchtwanger  v.   Dessar,    1798. 
Flynn  v.   Bailey,   77,    627,   926,   999. 

v.  Equitable     Life     Assur.     Soc, 
3001. 

v.  Hudson   River   R.   Co.,    743. 

v.  Kennedy,    3248. 

v.  Murphv,    2225. 

v.  New  York  El.  R.  Co.,  2332. 

v.  Union      Surety     &     Guaranty 
Co.,  733. 

v.  Westmayer,  1995. 
Foden  v.   Sharp,  168. 
Foels  v.   Town  of  Tonawanda,  2068. 
Foerst  v.  Empire  Life  Ins.  Co.,  1040. 


Foflin    v.    Fowler.    1370. 
Fogal  v.  Pirro,  465. 
Fogerty  v.  Jordan,  264. 
Fogg  v.   Edwards,   1907. 

v.  Fisk,   1800. 
Foland  v.  Davton,  271. 
Foley,  Matter  of,   1414. 
Foley   v.   Foley,    3594,   4001. 

v.  Gough,    125. 

v.  Mercantile   Nat.    Bank,  984. 

v.  Scharmann,    982,    983. 

v.  Schiedemantel,    1604. 

v.  Stone,    32  6. 

v.  Virtue,    1505. 

v.  Y.  M.  C.  A.,  4164. 
Folger    v.    Fitzhugh,    165. 
Follett  v.  Brooklyn  El.  R.  Co.,  1085. 

v.  Jewitt,   963. 
Follett    Wool    Co.    v.    Albany    Ter- 
minal Warehouse  Co.,   1863. 
Follower  v.  Laughlin,  718,  1047. 
Folsorn  v.  Van  Wagner,   3007. 
Foltz  St.,   Matter  of,   181,   187. 
Fonda   v.   Van   Home,    3194. 
Fontana    v.    Post    Printing    &    Pub- 
lishing Co.,   749,    4088. 
Foo    Long   v.   American   Surety   Co., 

3772,   4085. 
Foot  v.   Croswell,    2056. 

v.  Dillaye,    2807,    3789. 

v.  Etna  Life  Ins.  Co.,  3902. 

v.  Harris,  752. 

v.  Morgan,    230,    231. 

v.  Willard,    2233. 
Foote  v.   Beecher,   3863. 

v.  Emmons,   573. 

v.  Ffoulke,  925. 

v.  Roberts,   3907. 

v.  Schneider,    3120. 
Foraker  v.     Brown,  925,   954. 
Forbes  v.  Frary,  2599. 

v.  Garfield,  530. 

v.  Muxlow,  281. 

v.  Spaulding,    3301. 

v.  Waller,    1060,   3184,   3398. 

v.Wheeler,    4106. 

v.  Willard,  3322. 
Ford  v.   Babcock,   850. 

v.  Binghamton  Hydraulic  Power 
Co.,   2850. 

v.  David,  617,  937. 

v.Johnson,    1416,    1420. 

v.  Knapp,   3162,   3182. 

v.  Monroe,    1983,    2979. 

v.  Niles,    2224. 

v.  Townsend,   675. 

v.  Whitridge,    2S77. 

v.Williams,    249,    1745. 
Forehand  v.  Collins,  362. 
Foreman  v.  Edwards,  301. 
Forgotson  v.   Raubitschek,  2757. 
Forrest   v.    Forrest,    157,    1296,    1297, 
1734,    1736,    2585,    2598,    2738. 

v.  Havens,    3762. 

v.  Kissam,    2596. 
Forrester  v.  Strauss,  2889,  2891. 
Forster,  Matter  of,  284,  287. 
Forster  v.  Cantoni,  2086,  2087. 
Forstman     v.     Schulting.     249,     300, 

2704,  2972,   3041,   3061,  3692. 
Forsyth   v.    Campbell,    3187. 

v.  Clark,    3144. 
Fort  v.  Gooding,  942,  2957,  3004. 


422$ 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


Fort  v.  Palmerton,  2118. 

Fortier  v.  Delaware,  L.  &  W.  R.  Co., 

407  I. 
Fortunato    v.    City    of    New    York, 

2632. 
Fortune  v.   Trainor,   2196,   2197. 
Fosdick   v.    Groff,    944. 

v.  Town     of     Hempstead,     3832, 
3S35. 
Fosgate    v.    Herkimer    Mfg.    &    Hy- 
draulic Co.,   1091. 
Foster     v.     Bookwalter,     262,     2663, 
3618. 

v.  Brvan,   2625. 

v.  Bullock,   1814. 

v.  Central  Nat.  Bank.  4069.  4155. 

v.  Devlin,    1703. 

v.  Electric   Heat    Regulator   Co., 
764. 

v.  Foster,   3981,   4136. 

v.  Jackson      Marine      Insurance 
Co.,  2318. 

v.  Moore,    760. 

v.  Newbrough,    2236. 

v.  Retail     Clerks'     International 
Protective  Ass'n,   1574. 

v.  Romer,  2909. 

v.  Scurich,   1442. 

v.  Smith,    2864. 

v.  Standard     Nat.     Bank,      2672, 
2680. 

v.  Tanenbaum,    2251,    2271. 

v.  Townshend,   282,   1647,   164S. 

v.Wilkinson,    3290,    3320. 
Foulke  v.  Thalmessinger,  2294. 
Fourth  Nat.  Bank  v.  Boynton,   1781. 

v.  Mahon,    957. 

v.  Scott,   1611. 
Fowler,  Matter  of,  16. 
Fowler   v.   Callan,    264. 

v.  Dearing,    2001,   2918,   403S. 

v.  Elliget,   2117. 

v.  Fowler,    787. 

v.  Hay,    2870. 

v.  Havnes.    3113. 

v.  Howe   Mach.    Co.,    2271. 

v.  Huber,    643 

v.  Kennedy,    958. 

v.  Mutual  Life  Ins.  Co.,   409. 

v.  Starr,   2117. 

v.  Third  Ave.    R.   Co.,   1933. 

v.  "Westervelt,   921. 

v.  Wood,    451,   452,   502. 
Fox  v.  Brega,   1851. 

v.  Brooks,    804. 

v.  Cowperthwait,    852. 

v.Davidson,    1044,    3916. 

v.  Erbe,   4159,   4160,    417P. 

v.  Fee,   2041. 

v.  Fox,    292,    2955,    3002,    3024. 

v.  Gould,    3002. 

v.  McComb,    27S8. 

v.  Manhattan  Ry.  Co.,  2329. 

v.  Matthiessen,    2226,   2745,   3716, 
3717,    3897. 

v.Mays,    1464,    1516,    1619. 

v.  Metropolitan    Street    Ry.    Co., 
2371,    2376,    4160,    4161. 

v.Miller,    1702,   1789. 

v.  Moyer,  2606,  3387,  3414. 

v.  Muller,  2755,  2758,  2792. 

v.  Peacock,  4080,  4140. 

v.  Quinn,    16S8. 


Fox  v.  Smith,  2358. 
Foxell   v.    Fletcher,   1277. 
Fralick  v.  Betts,  138. 
France  v.  Hamilton,   651. 
Frances  v.   Graves,   1934. 

v.  Hamilton,    2796,    3101. 
Francis   v.   Church,   550. 

v.  Porter,    3633. 

v.  Sitts,    666. 

v.  Tilyon,    3712,   3713. 
Franey  v.   Smith,  3277,  3968. 
Frank  v.  Chemical  Nat.   Bank,  221S. 

v.  Levie,   1433. 

v.  McAdams,    143. 

v.  Manny,   1967,   2260. 

v.  Metropolitan   St.   R.   Co.,   4164. 

v.  Musliner,   1888,   1889. 
Frank    Brew.    Co.,    William    H.,     v. 

Hammersen,   1089. 
Frankel  v.  Elias,   478. 

v.  Hays,    1433,    1444. 

v.  Wolf,    1082,    2266,    2369. 
Frankfurter  v.  Home  Ins.  Co.,  1036. 
Franklin  v.  Catlin,  1546,  1911. 

v.  Judson,   4152. 

v.  Nore,    2056. 

v.Pendleton,    1458. 

v.  United   Ins.  Co.,   1737. 
Franklin  Bank  Note  Co.  v.  Mackey, 

2287,    3834,    3922,    3925. 
Franklin    Coal    Co.    v.    Hicks.     955, 

2693. 
Fraschieris  v.  Henriques,  2355,  2364. 
Fraser  v.   Alpha  Combined  Heating 
&    Lighting   Mfg.    Co.,    3716. 

v.  Granite         State         Provident 
Ass'n,   1000. 

v.  Hunt,    3358. 

v.  Phelps,    2593. 

v.  Ward,   1905,   3725. 
Frazer   v.   Hunt,   2597,    2932. 
Frazier  v.  Dewey,  60,  62. 
Frean   v.    Garrett,    3069,    3188. 
Frear  v.  Pugsley,  927. 
Fred    Oppermann,    Jr.,    Brewing    Co. 

v.    Pearson,    2678. 
Freda  v.  Montauk  Co.,  1861. 
Frederick     v.     City     of     Johnstown, 
23S8. 

v.  Decker,    32S0. 

V.  Wheelock,  3127. 
Fredericks  v.   Niver,   2948,   3360. 

v.  Taylor,   890,    901,   915. 
Freel    v.    County    of    Queens,    3901, 

3919. 
Freeland    v.    Brooklyn    Heights    R. 

Co.,    2025. 
Freeman   v.    Atlantic   Mut.    Ins.    Co., 
2567. 

v.  Brooks,    3015. 

v.  Campbell,    1402. 

v.  Dutcher,    41,    86,    1000. 

v.  Falconer,    384,    3833. 

v.  Frank,    1012. 

v.  Grant,    1029. 

v.  King,  1936. 

v.  Kolarek,    1276. 

v.  Leland,    1290. 

v.  Nelson,    30S0. 

v.  Newton,   37S. 

v.  Thomson,   352. 

v.  United  States  Elec.  Light  Co., 
2756. 


TABLE  OF  CASES. 


4229 


[references  are  to  pages.] 


Freeman  v.  Young.  1457,  1546,  1908. 

Freer  v.  Denton,  63,   1087. 

Frees   v.    Blyth,    4055,,    4080,    4105. 

V.Ford,   100,    184,   924. 
Freiberg  v.    Branigan,    1S06. 
Freide      v.      Weissenthanner,      1518, 

1529. 
Freifeid  v.  Sire,  4136. 
Freiot  v.  La  Fountaine,   2645. 
French   v.   Dauchy,   1636. 

v.  French,    4171. 

v.Merrill,    174,    2357. 

v.  Oliver,    2S13. 

v.  Powers,   107,   2657. 

v.Pratt,    1641. 

v.  Row,    3606. 

v.  Salter,    65,    76. 

v.  Seamans,   111. 
Freudenheim     v.     Raduziner,     1705, 

2682. 
Freudenthal    v.    Davis,    1641. 
Freund   v.   Washburn,    89. 
Freyberg  v.    Pelerin,   92. 
Frick   v.    Freudenthal,    4104,    4110. 
Fridenberg  v.  Lee  Const.  Co.,  744. 
Fried  v.  New  York  Cent.  R.  Co.,  378. 
Friedberg  v.   Bates,   257. 
Friedman,  Matter  of,   185. 
Friedman  v.  Bierman,   2611. 

v.  Breslin,    2269,   2271. 

v.  Eisenberg,   2916. 

v.  Newman,    3336. 

v.  Phillips.  3106,  4051. 

v.  Piatt,  1864. 

v.  Schulfan,    4069. 
Friedrich   v.    Brewster,    3150. 
Friend   v.   Jetter,    2346,    2347. 

v.  Mercantile  Trust  Co.,  1615. 

v.  Michaelis,    1403,    1404. 
Fries  v.    Coar,   693,   939. 
Friess  v.   New   York  Cent.    &   H.   R. 

R.   Co.,   2233. 
Frieze    v.    New    York    Cent.    R.    Co., 

3634. 
Frindel  v.  Schaikewitz,  2227,  2238. 
Frink  v.  Morrison,  2829,  3189. 

v.  Stevens,    4021. 
Frisbee  v.  Jacobs,   854. 
Frisbie  v.  Averell,   103S,   1044. 
Frist   v.    Climm,    889,    890. 
Fritchie   v.    Holden,    3951. 
Frith  v.   Crowell,   140. 
Frits,   Matter  of,   80. 
Fritts  v.   Slade,  1277. 
Fritz  v.   Worden,    1424. 
Fritze   v.    Pultz,    4019,    4020. 
Frohle  v.   Brooklyn  Heights  R.  Co., 

2273. 
Fromer  v.  Ottenberg,  2559. 
Fromme  v.  Gray,  327. 

v.  Jarecky,   3333,    3338,   3375. 

v.  Lisner,    1846. 

v.  Union     Surety     &     Guaranty 
Co.,    293,    407. 
Frost  v.  Akron  Iron  Co.,  696. 

v.  Craig,    3303,    3308,    3312,    3333. 

v.  Flint,    577,   2782. 

v.  Frost,   2041,    4025. 

v.  Hirschberg,    2336. 

v.  Koon,   3149,   3245. 

v.  McCarger,  2258. 

v.  Mott,  1429,  1494,  3194. 


Frost    v.    Reinach,    2571,    2607,    2639, 
2997,  4062,   4065. 
v.  Wehawken  Wharf  Co.,   267. 
v.  Yonkers      Saw      Bank,      3132, 
3148,    3149. 
Frothingham  v.  Broadway  &  S.  Ave. 

R.   Co.,   1788. 
Froude   v.   Froude,    1728,    1738,   1751. 
Froundfelker  v.  Delaware,  L.   &  W. 

R.  Co.,  1751,   2784. 
Frowein  v.  Lindheim,  1S39,  1819. 
Fry   v.    Bennett,    233,    821,    963,    1001, 
1003,    1727,    2166,    2203,    2308, 
2696,    3689,    3690. 
v.  Clow,  494. 

v.  Manhattan   Trust   Co.,   1742. 
Fryatt  v.    Lindo,    539. 
Fuchs    v.    Morris,    1765. 
Fuchs   &  L.  Mfg.   Co.   v.   Springer   & 

Welty   Co.,    2876. 
Fudickar  v.  Guardian  Mut.  Ins.  Co., 

2630. 
Fuentes    v.    Mayorga,    1341. 
Fuerstenberg      v.      American      Soda 

Fountain  Co.,   1455. 
Fullan  v.  Hooper,  1595,  2818. 
Fuller,    Matter   of,    3229,    3231,    3232. 
Fuller  v.  Allen,  3101,  3133. 

v.  Brown,    2202,    3385,    3410. 

v.  Conde,    2917. 

v.  Jamestown   St.    Ry.    Co.,    2273, 

v.  Read,  '  51,     1916,     1917,     1918, 

1921, 
v.  Straus,   2882. 
v.  Tolman,   2241. 
v.  Union  Elec.  Co.,   2207,  2208. 
v.  Williams,    262. 
Fuller  Buggy  Co.  v.  Waldron,   4102. 
Fuller  &  Co.,  Geo.  A.   v.  Manhattan 
Const.    Co.,    4110,    4116. 
v.  Schrenk,    2300. 
Fullerton   v.   Gaylord,    S57,    861,    864, 
1812,  1924. 
v.  Young,    4173. 
Fulton    v.    Fulton,    2101. 
v.  Ly decker,    81. 
v.  Metropolitan     Life     Ins.     Co., 

3705. 
v.Whitney,  3225. 
Fulton  Bank  v.   Beach,   3948. 
Fulton    Fire    Ins.    Co.    v.    Baldwin, 

1090,    3898. 
Funk  v.  Brooklyn  Glass  &  Mfg.  Co., 
3190. 
v.  Evening  Post   Pub.    Co.,    2688. 
v.  Tribune    Ass'h,    1788. 
Funson   v.   Philo,   1015,   2754,   2774. 
Furber  v.  McCarthy,  1329. 
Furbush   v.    Nye,    132,    1518. 
Furman  v.   Cunningham,   2900,   2933. 
v.  Furman,      2110,      2816,      2818, 

2824. 
v.  Walter,    382,    1433,    1452. 
Furniss  v.   Brown,   65,   1603. 
Furst    v.    Second   Ave.    R.    Co..    2258, 

2259,  2273,   2277. 
Fusco   v.  Adams,   901. 


Gh 


Gabav  V.  Doane,  1015,  3626,  3691, 
3693,  4109. 


4230 


TABLE  OF  CASES. 


[REFERENCES   ARE   TO   PAGES.] 


Gabriel    v.     Schillingor    Fire    Proof 

Cement   &  Asphalt  Co.,   284. 
Gade  v.  Gade,  2635. 
Gadsden  v.  Woodward,   S89,  2S52. 
Gadski-Tauscher  v.   Graff,   4058. 
Gaffnev  v.  Bigelow,  661. 

v.  Burton,    1289. 

v.  Colvill,    840. 

v.  People,    2256. 
Gage,  Matter  of,   3855. 
Gage  v.   Denbow,   322,   334. 

v.  Peetsch,    1900. 

v.  Village       of       Hornellesville, 
2939. 
Gagnon,  Matter  of,  3283. 
Gaines'  Will,  Matter  of,  133,  3985. 
Gains,  Matter  of,  337,   1795,   1809. 
Gair    v.    Birmingham    &    Co.,    1662, 
1663. 

v.  Cohen,   2286. 
Galbraith  v.    Daily,    952,   1002. 
Gale,  Matter  of,   250. 
Gale  v.  Hoysradt,  2357. 

v.  New   York   Cent.    &   H.    R.    R. 
Co.,  2702. 

v.  Vernon,    2876. 

v.Wells,    2117,    3841. 
Galen    v.    Brown,    3114. 
Galinger   v.    Engelhardt,    3771,    3776. 
Gall,  Matter  of,   3663. 
Gall   v.  Gall,   638,   2273,   2276,   2813. 
Gall's  Estate,  Matter  of,  641,  30S2. 
Gallagher  v.   Baird,   2986. 

v.  Dolan,   3197. 

v.  Gallagher,    2272. 

v.  Geneva,     W.     S.     F.     &    C.    L. 
Traction  Co.,   1874. 

v.  Grand   Trunk    Ry.    Co.,    693. 

v.  Karns,    1626. 

v.Kingston   "Water   Co.,    224. 

v.  McMullin,   2335. 

v.  Merrill,    1077. 

v.  O'Neil,   3333. 

v.White,    2334,    2873. 
Gallatia  v.  Cunningham,  2052. 
Gallatin  v.  Oriental  Bank,   1584. 
Gallation  v.  Smith,  2947. 
Gallaudet    v.    Steinmetz,    2032,    2033, 

2669. 
Galle  v.  Tode,  1401,  2613,  2S91,  3864. 
Gallerstein    v.    Manhattan    Ry.    Co., 

871. 
Galligan  v.   Galligan,   2820. 

v.  Hornthal,  358,   1962. 
Galligen  v.   Groton,   1449,   1461. 
Gallt  v.  Finch,  626,  3682,  3687. 
Gallup  v.   Bell,   2992. 

v.  Bernd,   471. 
Galster  v.  Syracuse  Sav.  Bank,  1650, 

1651,    3376. 
Gait    v.    Provident    Sav.    Bank,    816, 

818. 
Galusha    v.    Flour    City    Nat.    Bank, 
1593. 

v.  Galusha,    3747,    3750. 
Galway  v.  Metropolitan  El.  Ry.  Co., 

487. 
Gamble   v.   Beattie,   887. 

v.  Lennon,    2676. 

v.  Taylor,    2034. 
Gambling   v.   Haight,    48,    49. 
Gamman   v.   Berry,   227. 
Gandall    v.    Finn,    2882. 


Ganley  v.  Troy  City  Nat.   Bank,   30, 

494. 
Gannon  v.  Fergotston,  1012. 

v.  Myars,  1006. 
Gansberg  v.  Sagemohl,  2140,   2293. 
Gansevoort  v.   Gilliland,   3147. 
Ganz    v.    Edison    Elec.    Illuminating 

Co.,   1931,   1942. 
Garbaczewski  v.   Third  Ave.   R.   Co., 

2339. 
Garber    v.    New    York    Citv    R.    Co., 

4158. 
Garbutt  v.   Garbutt,   2739. 

v.  Hanff,    1507. 
Garcie  v.  Sheldon,  611,   612,  1607. 
Garczysnki    v.    Russell,    2617,    2726, 

3095. 
Garden  v.  Sabey,  1476. 
Gardenier  v.  Eldred,  1079. 

v.  Tubbs,    3144. 
Gardiner   v.   Gardiner,   1280. 

v.  Peterson,    339. 

v.  Schwab,    2643,    2665. 
Gardinier  v.   Knox,   875. 
Gardner,   Matter   of,    501. 
Gardner   v.   Barden,    2318. 

v.  Hennett,    1727. 

v.  C.    B.    Keogh    Mfg.    Co.,    3417. 

v.  Clark,    964,    2313,   2338. 

v.  Commissioners    of    Highways 
of  Warren,  237. 

v.  Friederich,    2269,    2282. 

v.  Gardner,    338,   1603. 

v.  Kelly,  1898. 

v.  Kraft,   920. 

v.  Lay,   3299,   2300. 

v.  Locke,    72,    1085. 

v.  New  York  Mut.   S.      L.   Ass'n, 
3888. 

v.  Ogden,   72. 

v.  Smith,    3366,    3369,   3371. 

v.Teller,    815. 

v.  Thomas,    139. 

v.  Tyler,    276. 

v.  Turner,    2190. 

V.Wight,    4018. 
Garfield  v.  Blair,  2356. 

v.  Kirk,   2236,   2244,    2276. 
Garfield     Nat.     Bank     v.     Bostwick, 

v.  Colweil,     2025,     2030. 

v.  Kirchwey,  9S4. 
Garia    Bro.    &    Co.    F.,    v.    Salomon, 

1784. 
Garland   v.   Van   Rensselaer,   1014. 
Garling  v.  Ladd,  2904. 
Garlock  v.  Vandevort,   126. 
Garner  v.  Gladwin,  304. 

v.  Hannah,  1057,  2762. 

v.  Hellman,  4084. 

v.  Mangam,  397,  592. 

v.  Manhattan  Bldg.  Ass'n,  988. 

v.  Wright,   59,   407,   921. 
Garnsey  v.  Knights,  3720. 
Garofalo  v.  Prividi,  3631,  4130,  4131. 

v.  Rogers,   380,   382. 
Garr  v.  Bright,  2927. 

v.  Martin,  3910. 
Garrabrant  v.  Sullivan,  2914. 
Garrett  v.  Humier,  1343. 

v.Wood,    965,    1011,    1014,     2028, 
2963,  2965,  2967,  3905,  3944. 
Garrison  v.  Garrison,   1990. 


TABLE  OF  CASES. 


4231 


[REFEBENCES   ABE   TO   PAGES.] 


Garrison  v.  McCullough,    1082,   2211. 

v.  Marie,  42. 
Garson  v.  Brumberg,  1462. 
Garver,  Matter   of,   3436,   4045,    4046. 
Garvey,   Matter  of,   1771,   1772,   1773. 
Garvey    v.    New    York    Life    Ins.    & 
Trust  Co.,  997,  1091. 

v.  Owens,   2099,   2927. 

v.  Union  Trust  Co.,  S29. 
Gasherie   v.   Apple,    1402,   1403,   1514. 
Gaskell  v.  Cowan,  2034. 
Gaskin  v.  Anderson,  3236. 
Gas-Light  Co.  v.  Rome,  W.  &  O.  R. 

Co.,  1034. 
Gas-Works    Const.    Co.    v.    Standard 
Gas-Light  Co.,  869,  879,  1055,  2083. 
Gates,  Matter  of,  16,  3711. 
Gates  v.  Beecher,  1755,   1765. 

v.  Canfield,  2753,  2924,  2925, 
2968. 

v.  De  La  Mare,  296,  303. 

v.  Hames,  383. 

v.  McDonald,  1903. 

v.  Young,   3257,  3267,   3388. 
Gaul  v.  Miller,  2936. 
Gauntley  v.   Wheeler,   1364,   1371. 
Gautier    v.    Douglas    Mfg.    Co.,    169, 

2638,   2745,  3904. 
Gawthrop  v.  Leary,  1807,  2713. 
Gawtry  v.   Doane,   2274. 
Gay  v.  Cary,  878. 

v.  Seibold,  2975. 
Gaylord  v.  Beardsley,   834,   1042. 

v.  Jones,  3339. 

v.  Karst,  2306,  2692. 

v.  Van  Loan,  455. 
Gebhard  v.  Gebhard,  2827. 

v.  Parker.  861. 
Gedney  v.  Gedney,  53. 

v.  Haas,  1342. 

v.  Purdy,  1898,  1901. 
Gee  v.  Chase  Mfg.  Co.,  861. 

v.  Pendas,  1804. 
Geery    v.    Geery,     3059,     3060,    3389, 
3391,   3394,  3395. 

v.  New    York    &    L.     Steamship 
Co.,  59. 
Geib  v.  Icard,   561. 

v.  Topping,  3049. 
Geibel  v.  Elwell,  511. 
Gein  v.  Little,  3728,  3729,  3761,  3773, 

3774. 
Geis  v.  Loew,  3630. 
Geiser  Mfg.  Co.  v.  Taylor,  2256. 
Gelch  v.  Barnaby,  1884,  1887. 
Gellar  v.  Baer,  1351. 
Gellatly  v.  Lowery,  1767. 
Geller  v.  Hoyt,  239,  2792. 
Gelster  v.  Syracuse  Sav.  Bank,  3377. 
Gelston  v.  Marshall,   1827. 
General   Elec.    Co.   v.    National   Con- 
tracting Co.,  3866. 

v.  Sire,  3063. 
Genesee    County    Bank    v.    Bank    of 

Batavia,  3395,  3435. 
Genesee    River    Nat.    Bank   v.   Mead, 

1307,  3409. 
Genesee     Valley     Canal     R.     Co.     v. 

Slaight,  457. 
Genet  v.  Beekman,  3431. 

v.  Davenport,  2944,   3605,  3665. 

v.  Delaware  &  H.  Canal  Co.,  118 
131,  3003,  3747,  3756,  3786, 
3876,  3923. 


Genet  v.  Howland,  378. 

Geneva   &  W.   R.   Co.   v.   New  York 

Cent.  &  H.  R.  R.  Co.,  2653. 
Genin  v.  Schwenk,  1325,  1347. 

v.  Tompkins,   1398,   1434,   1460. 
Genter  v.  Fields,  3771. 
Genung  v.  Baldwin,  2282. 

v.  Metropolitan     Life     Ins.     Co., 
2355. 
Geoghan  v.  Atlas  S.  S.  Co .,  1738. 
Geoghegan  v.  Luchow,  2133. 
George  v.  City  of  N.  Y.,  4115,  4116. 

v.  Fitzpatrick,  721. 

v.  Grant,  1023,  2166. 

v.  McAvoy,  1024. 
George  A.   Fuller  Co.   v.   Manhattan 

Const.   Co.,   4110,   4116. 
George    B.    Wray    Drug   Co.,   Matter 

of,  3957. 
George   F.   Lee   Coal  Co.   v.   Meeker, 

2561,  2576. 
Georgia  Lumber  Co.   v.   Bissell,   804. 

v.  Strong,  668. 
Georgia     Pine     Turpentine     Co.      v. 

Newman,  2369. 
Gerald  v.  Quam,   2719,   2740. 
Gerard  v.  Cowperthwait,   2228. 

v.  Gerard,  2875. 
Geraty  v.  National  Ice  Co.,  2324. 
Gerdau  v.  Faber,   1028,   1039,   1045. 
Gerding  v.   Haskin,   2291,    2322. 

v.  Welch,  385. 
Gere  v.  Cayuga  County  Sup'rs,  2880. 

v.  Dibble,   3370,   3395. 

v.  Gundlach,   702,    2822. 

v.  New   York   Cent.    &   H.    R.    R. 
Co.,  1593. 
Gerity    v.    Seeger    &    Guernsey    Co., 

617,  2580,  2588,   2790. 
German  American   Bank  v.   Champ- 
lin,  649,  809,  823. 

v.  Cunningham,  4162. 

v.  Dorthy,  585,  3232. 

v.  Russell,  3232. 
German-American  Ins.  Co.  v.  Stand- 
ard Gas  Light  Co.,  2143. 
German-American  Prov.  Co.  v.  Gar- 
rone,  2918,  2954. 
German  Bank  v.  Dash,  1400. 

v.  Edwards,  1285. 

v.  Meyer,  1400. 
German  Exch.  Bank  v.  Kroder,  640, 

939,  940. 
German   Sav.   Bank  v.   Sharer,    3005. 
Germania    Life    Ins.    Co.    v.    Powell, 

1688. 
Germania   Sav.   Bank   v.    Suspension 

Bridge,  3597. 
Gerregani  v.   Wheelwright,   3340. 
Gerry  v.  Post,  3236. 

v.  Siebrecht,    2267,   4160. 
Gescheidt  v.  Quirk,  2688. 
Gerstein  v.  Fisher,  1058. 
Getman  v.  City  of  New  York,  160. 
Getty  v.  Campbell,    1650. 

v.  Hudson  River  R.  Co.,   62,   996. 

v.  Spaulding,  1057. 
Gibbons  v.   Berhard,   689,   3762,   3778. 

v.  Bush  Co.,  4149. 

v.  Van  Alstyne,  2340,  4009. 
Gibbs,  Matter  of,  16. 
Gibbs  v.   Bull,   2993. 

v.  Hichborn,   1285. 

v.  Loomis,  1308. 


4232 


TABLE  OF  CASES. 


[references  are  to  pages.! 


Gibbs  v.   Prindle,   340,  3045. 

v.  Queen   Ins.  Co.,   134.   135. 
Giberton  v.  Fleischel,  2143. 
Gibney  v.  Reilly,  3352. 
Gibson  v.   Denton,  26S5. 

v.  Gibson,  106S. 

v.  Haggerty,     3256,     3294,     3327, 

;;;;  ^  i| 

v.  Johnson,  2226. 

v.  Metropolitan   St.    R.    Co.,    2666. 

v.  Murdock,  663. 

v.  National     Park     Bank,     1411, 
1470,   1480,   2091,  3126. 

v.  Pearsall,  1810. 

v.  Stetzer,  2618,  2638. 

v.  Widman,  4166. 

v.  "Woodworth.  143. 
Gideon  v.  Dwyer,  564,  2870,  2874. 
Gidney  v.   Spelman,  2938. 
Gies    Lithographic    Co.,    Matter    of, 

3100,  3101. 
Gifford  v.  Oneida  Sav.  Bank,  4146. 

v.  Rising,   1S93,   1898,   3374,   3403, 
3405. 

v.  Town  of  Gravesend,  1931. 
Gihon  v.  Levy,  960. 
Gihon's  Will,   Matter  of,    3974,   3985. 
Gilbert  v.  Ackerman,  449. 

v.  Beach,  2289. 

v.  Bulkley,  1366. 

v.  Columbia  Turnpike  Co.,  647. 

v.  Comstock,  497. 

v.  Cram,  990. 

v.  Finch,    1687,   1688,   2290. 

v.  Frothingham,  25S4,  3314,  3339. 

v.  Gilbert,  1887. 

v.  Hotchkiss.  2631. 

v.  McKenna,  992. 

V.  Morrison,  521,  2151. 

v.  Pritchard,  62. 

v.  Rounds,  2864. 

v.  Sage,  2252. 

v.  Taylor,  486. 

v.  Third  Ave.  R.  Co.,  1781. 

v.  Warren,  1068. 

V.  York,  925,  996. 
Gilbert's  Estate,   Matter   of,   3975. 
Gilbertson  v.  Forty-Second  St.,  M.  & 

St.  N.  Ave.  R.  Co.,  2320. 
Gilchrist  v.  Comfort,  3173 

v.  Gilchrist's  Ex'rs,  1028. 

v.  Stevenson,  2381. 
Gildersleeve  v.  Landon,  912. 

v.Lester,  339,  3063,  3292. 
Giles  v.   Austin,    1052,    3832. 

v.  Halbert,  2945. 
Gilewicz    v.     Goldberg,     1429,     1430, 

3194. 
Gill  v.  Clark,  2626. 
Gilland  v.  Lawrence,  2205. 
Gillespie  v.  Dry  Dock,  E.  B.  &  B.  R. 
Co.,  2337. 

v.  Mulholland,   207,   284,   286. 

v.  Pflster,  1886. 

v.  Rosekrants,  518. 

v.  Satterlee,  666. 

v.  Torrance,  3865. 

v.  White,  1365. 
Gillespy  v.  Bilbrough,  3004. 
Gillet  v.  Fairchild,  847,  923. 

v.  Mead,  2691. 

v.  Roberts,  82. 
Gillett  v.  Bate,  3406. 


Gillett  v.  Borden,  1085. 

v.  Hilton,  3306. 

v.  Staples,  3385. 

v.  Trustees    of    Village    of    Kin- 
derhook,  2342. 

v.  Whiting,  2326. 
Gillette  v.  Noyes,  4135. 

v.  Smith,  452. 
Gilliand  v.  Campbell,  2916. 
Gillig   v.    George    C.    Treadwell    Co., 
1484,   3135,  3911. 

v.  Grant,   3135,   3136. 

v.  Treadwell  Co.,  1650. 
Gillin  v.  Canary,  25. 
Gillingham  v.  Jenkins,  4030,  4033. 
Oilman   v.   Gilman,    3981,   3982. 

v.  Healy,  2594. 

v.  Prentice,   1579,    1581. 

v.  Tucker,  3148,  3152. 
Oilman's     Estate,     Matter     of,     334, 

3980. 
Gilmore  v.  Crowell.  1511. 

v.  Ham,   489,   2614. 

v.  Hempstead,   895,  901. 
Gilpin   v.  Daly,   1742. 
Gilroy    v.    Badger,    266,    2965,    2968, 
2969. 

V.  Loftus,    2266,   2345. 

v.  Stampfer,  2965. 
Gilsey  v.  Kien,   4111. 
Ginnel  v.   Stayner,  1077. 
Ginochio  v.  Orser,  3211. 
Ginsburg  v.  Kuntz,   3767. 
Gitty  v.  Allen,  2298. 
Glacius    v.    Black,    2379,    2380,    2381, 

2612. 
Glackin  v.  Zeller,  2915-2917. 
Gladke,  Matter  of,   497. 
Glasberg  v.  Dry  Dock,  E.  B.  &  B.  R. 

Co.,    1876. 
Glascoe  v.  Willard,  4134,  4135. 
Glassford  v.  Lewis,  2703-2705. 
Glassner  v.  Wheaton,   3126,  4019. 
Gleason  v.  Gage,  3396. 

v.  Hamilton,  2163. 

v.  Metropolitan   St.  R.   Co.,   4159. 

v.  Moen,  969. 

v.  Smith,  2664. 

v.  Youmans,  829. 
Glen  v.  Hodges,  131. 
Glen    Cove     Mfg.     Co.     v.     Gotthold, 
1502. 

v.  Sutro,  1781. 
Glen's    Falls    Paper    Co.    v.    White, 

1279. 
Glen  &  Hall  Mfg.  Co.  v.  Hall,  979. 
Glendening  v.   Canary,    2278. 
Glenn  v.  Lancaster,  2141. 
Glenney  v.  Stedwell,  107,  1717,  1790. 
Glenside    Woolen    Mills,    Matter    of, 

196. 
Glenville     Woolen     Co.     v.     Ripley, 

3304,  3676. 
Glickman  v.  Loew,  954,  2877. 
Gliddon  v.  Langdon,   530. 
Glines    v.     Binghamton     Trust    Co., 
1653. 

v.  Supreme  Sitting  Order  of  Iron 
Hall,  621,  786. 
Globe  Soap  Co.  v.  Liss,  2009. 
Gloucester   Iron-Works  v.   Board  of 

Water  Com'rs,  1693. 
Glover  v.   Gargan,   3272,   3273. 


TABLE  OF  CASES. 


4233 


[REFERENCES   ARE   TO   PAGES.] 


Glover  v.  Haws,  2040. 

v.  Whittenhall,  1472. 
Gmaehle     v.     Rosenberg-,     85,     1890, 

1891, 4051. 
Goch  v.  Marsh,  1069. 
Goddard  v.  Benson,  1060. 

v.  Cassell,  1027. 

v.  Mooney,  2320. 

v.  Pardee  Medicine  Co.,  866. 

v.  Stiles,  640,  3377. 

v.  Trenbath,  300. 
Godding  v.    Porter.   2625. 
Godfrey  v.  Gibbons,  3114. 

v.  Godfrey,  1524. 

v.  Moser,   3905,   3919. 

v.  Pell,   1337,  1343. 
Godlev  v.   Kerr  Salt  Co.,   3013,   3014. 
Goelet  v.  Cowdrey,  832. 

v.  Lawlor,   2270,  3807. 

v.  Metropolitan  Transit  Co.,  416. 

v.  Spofford,  2787. 
Goetting  v.  Biehler,  2612. 
Goettman  v.  City  of  New  York,  315. 
Goetz    v.    Metropolitan    St.    R.    Co., 
3688. 

v.  Mott,  2808. 
Goff   v.   Charlier,    4130. 

v.  Craven,  3207. 

v.  Star    Printing    Co.,    890 
Goillotel  v.  City  of  New  York.  450. 
Goings  v.  Patten,  861. 
Goivans  v.  Jobbins,  4094. 
Gold  v.  Bissell,  1338.  3193. 

v.Hutchinson,    560,    563,    2874. 

v.  Serrell,  2619. 
Goldberg,  Matter  of,  250,   251,  254. 
Goldberg  v.   Fowler,  2847. 

v.  Goldstein,  4059. 

v.  Kirschstein,  1003. 

V.  Lippmann,  447. 

v.  Markowitz,   3818,  4086. 

v.  Metropolitan   St.   R.    Co.,   4160. 

v.  Roberts,  1785. 

v.  Utley,  999.  3633. 

v.  Victor,  2110,   2113. 

v.  Wood,  4111. 
Goldberger  v.  Gallagher,  2114. 

v.  Manhattan    Ry.    Co.,   2585. 
Golde  v.  Whipple  &  Co.,   3907. 
Golden  v.  Health  Dept..  1011,  4115. 

v.  Metropolitan     Life     Ins.     Co., 
1860. 
Golden     Gate     Concentrator    Co.     v. 

Jackson,  1442. 
Goldenson  v.  Lawrence,  2661. 
Goldey   v.   Morning   News,    4088. 
Goldie  v.  Goldie,  4084. 
Goldman    v.    Kennedy,   3147,   3161. 
Goldmark     v.    Magnolia    Anti-Fric- 
tion Metal  Co.,  72. 

v.  Magnolia  Metal  Co.,  672,  1456, 
1519. 
Goldschmidt  v.  Goldschmidt,  1315. 

v.  New    York    Steam    Co.,    1598, 
2151. 
Goldshear  v.  Barron,  4047. 
Goldsmith  v.  Goldsmith,  3652. 

v.  Wells  Co.,   2296. 
Goldstein  v.  Goldsmith,  808. 

v.  Greenberg,  3907. 

v.  Marx,  1949,   4102. 

v.  Michelson,     2787,     2788,     4085, 
4101. 


Goldstein  v.   Shapiro,   4072. 

v.  Stern,  2013. 
Goldzier   v.  Central   R.  Co.   of  N.   J., 

3S99. 
Golin  v.  Town  of  Mooers,  1798. 
Goll  v.   Hinton,   1407,    1416. 
Gomprecht  v.  Scott,  3333,  3348,  3356, 

3359 
Good  v.  Daland,  2782,   3692,  3705. 
Goodall     v.     Demarest,     3279.     328S, 

3294. 
Goodell  v.  Harrington,  3231. 

v.  People,  265. 
Goodfriend  v.  Robins,  4052. 
Gooding  v.  Brown,  3004. 

v.  McAlister,   59. 
Goodman  v.  Guthman,  3035. 

v.  Robb,     834,     845,     1003,     1066, 
1070. 

v.  Steinfeld,  2366. 
Goodrich  v.  Gillies.  2666. 

v.  Goodrich,   2555,   2578,   2629. 

v.  McDonald,  294,  296,  305. 

v.  Sanderson,  1645. 

v.  Sweeny,  2292. 

v.  Thompson,  2392. 

v.  Vanderbilt,   1933.    1934. 
Goodridge  v.  New,  2578. 
Goodsell  v.  Western  Union  Tel.  Co., 

3901,   3919,   3927. 
Goodwin,  Matter  of,  3640. 
Goodwin    v.    Bunzl,    6S3,    3749,    3767, 
3773. 

v.  Cobe,  853. 

v.  Crooks,  3233,   3236. 

v.  Griffis,  3211. 

v.  Massachusetts  Mut.   Life   Ins. 
Co.    955. 

v.  Schreiber,    2810,    3595. 

v.  Thompson,  824. 

v.  Wertheimer,   845,   964. 
Goodyear  v.  Baird,   3032. 

v  Betts   3333 

v!  Brooks,  2561,   2567,  2573,   2576. 

v.  Commercial     Fire      Ins.      Co., 
1516. 

v.  De  La  Vergne,  912. 

v.  Phenix  Rubber  Co.,   1776. 

v.  Vosburgh.    1744.    175S.    1759. 
Goodyear    Dental    Vulcanite    Co.    v. 

Frisselle,  2842. 
Goodyear's  India  Rubber  Glove  Mfg. 

Co.  v.  Gorham,  1846 
Gopen  v.  Crawford,  30. 
Gopsill   v.   Decker,    682,   689. 
Gorden  v.   Strong.   2071. 
Gordon  v.  Fox,  1298. 

v.  Kings    County     El.     Ry.     Co., 
2249. 

v.  Strong,   2952,   3015,  3021. 
Gore  v.  Gore,   4144. 
Gorham  v.  Gale,  271,  1967,  3157. 
Gorham  Mfg.  Co.  v.   Seale,  2678. 
Gorman  v.  Finn,  3101. 

v.  Gorman,  3235. 

v.  Milliken,  2343. 

v.  South  Boston  Iron  Co.,  1955. 

v.  Williams,  2286. 
Gormerly  v.  McGlynn,  107,  2611. 
Gormly  v.  Mcintosh.  3602. 
Gorry,  Matter  of,  833. 
Gorse  v.  Lynch,  207. 
Gorthy  v.  Shawmut  Ins.  Co.,  2334. 


4:234 


TABLE  OF  CASES. 

[REFERENCES   ARE   TO   PAGES.] 


Gorton  v.   United  States   &  B.  Mail 

S    S    Co..   2915. 
Gos'lin,   Matter   of,   4066. 
Goss.  Matter  of.  40.8. 
Goss  v.  Hays.  4001    4003. 

v.Mather,  31S2. 
Gotendorf  v.   Goldschm.dt    2040 
Gottlieb  v.  Alton   Grain  Co.,   2757. 

GottVscSlZiv:  German    Sav.    Bank, 
GouS.  Matter  of    3095    3255,  3259. 
Gough  v.  McFall.  515,  517 
Goulard  v.  Castillon.  2646. 

GOU\d  ^di^n^lelVric    Illuminating 
Co.,  957. 
v.  Gager,  3232. 
v.  Glass,  905. 
vMoort.S-e.  2308,  2733,  3291. 

V-SSS,32^30,      4031,     4032, 

4033. 

v.  Root,  630. 

v.  Weed,  2230,  2374. 
Gould  Coupler  Co.,  In  re,  40,  49. 
Goupil  v.  Sinionson    1301. 
Gouraud  v.  Trust.  3S4S. 
Gourney  v.  Wersuland,  896. 
Gouverneur  v.  Warner    3086. 
Gove  v.  Hammond,   ^iA- 
Govers  v.  Hofstatter    2348. 
Govin   v.  De  Miranda,   489,    8b9,   »<^. 

Gowans  v.  Jobbins,  4099    4128,  JJJJ. 
Gowdey  v.  Robbins,  2342,  234<5,  *««■ 
Sowoly's  Estate    Matter  of,   3800. 
Gowing  v.  Levy,  2974. 
Grab,  Matter  of,  3616. 
Graber  v.  Gault,  417A 

gride  "crSsi^g 'Co3rn'rs    of    Buffalo, 

Matter  of,  15,  2984    3000 
Graduates,  Matter  of  the.  246. 
Graduates    of    Law    School    of    Co 

lumbia  College    Matter  of,  246. 
Grady  v.  Ward,   3234 
Graef  v.  Bernard,  2821,  dZb<s. 
Grafton  v.  Weeks    731 
Graham,  Matter  of,  40  5 u 
Graham  v.   Ackley    2128,   2130,   iiti. 
v.  Andrews,  267. 
v.  Bleakie,  336. 
v.  Camman,  995. 
v.  Carleton,  1755. 
v.  Chapman,  1644. 
v.  Chrystal.  2255.  2391. 
v  Lawyers'    Title    Ins.    Co..    921, 

3366. 
v.  Luddington,  451,   465. 
v.  O'Hern,  2143. 
v  Powers,  665. 
v.  Read,  2764. 
v.  Sapery, 3667. 
v.  Scripture,  2843. 
v.  Stirling  Ins.  Co.,  166Z. 
Grand     Central     Bank. 
Grand    Lodge    K     P     v.    Manhattan 

Sav.  Inst.,   3325,   3326,   33ol. 
Grange  v.  Gilbert,  1008. 
Granger  v.  Craig,  3755. 


4158. 


Matter     of 


Granger  v.   Schwartz,   817,  1526. 
v.  Sheble,  210. 
v.  Smyth,  1606.  nn 

Grangier  v.  Hughes,   282,  286. 
Grannan     v.      Westchester      Racing 

Ass'n,  3621. 
Grant  v.  Birdsall,  716. 

v.  Birrell,  811. 

v.  Crittenton,  1885. 

v.  Griswold,   2100.   2101. 

v.  Hubbell,  3650. 

v  M'Lachlin,  3226. 

v.  National    R.   Spring  Co. 

v.  Pratt  &  Lambert,  4106. 

v.  Spencer,  1694. 

grlnfma? "£  Thrall,    92,   93,    923. 
Grapel  v.  Hodges    264 
Grassmuck  v.  Richards,  33o3. 
Grasso   v.   Holbrook.   Cabat   &   Daly 

Contracting  Co.,  4051. 
Grattan    v.    Metropolitan    Life    Ins. 
Co.,  1043. 
v.  National    Life   Insurance    Co. 
391. 
Grauer  v.   Grauer,  642 
Graves  v.   Blanchard,   2599. 
v.  Delaplaine,  1736. 
v.  Graham,  738,  3722. 
v.  Lake,  3320. 
v.  Spier,  378. 
v.  Waite,   712,   907,   930. 
Graves     Elevator     Co.     v. 

Temple  Ass'n,  429,  432. 
Gray  v.  Ashley,  1423,   3265,  3330. 
v.  Barton,  2265. 
v  Brooklvn      Heights      R. 

2241, 2261. 
v  Brooklyn      Union     Pub. 

964,  2266. 
v.Cook,  17,  336,  2753. 
V.Daniels,   36,   2933. 
v.De  Castro,  1577. 
v.  Delaware,    L.    &    W.    R.    Co., 

2693 
v.  Fisk, 2630, 2631. 
v   Fuller,  73,  927,  1002. 
v  Green,  169,  473,  2008,  3933. 
v'.  Hannah,  2962. 
v  Journal   of  Finance  Pub.   Co., 

387. 
v.  Levy,  1648. 
v.  Lieben,  3090,  3300. 
V.Manhattan  Ry.  Co.,  i^8. 
v  New   York  Floating  Elevator 

Co.,  2719. 
v.  Robjohn,  2995. 
v.  Rothschild,  403. 
v  Ryle,  132,  1091. 
v.  Seeber,  446,  467. 
v.  Shepard,  864. 
v.  Sheridan  Elec.  Light  Co.,  1400, 

1432 
v.  Tomp"kins       County        Sup'rs, 

OQ1   Q 

r„v  T,jtn    Co.  v.  American  Watch- 
GmLK    Time    Detector    Co..    4074, 

4108,  4111,  4114,  4139. 
Greaean  v.  Buchanan,  50£. 
Guanine  v.   Mercantile  Ben.   Ass'n, 

GrS  v.  Long  Island I  R  Co.,  2286. 
Greason  v.  Ketteltas.  2144. 


Masonic 


Co., 


Co., 


TABLE  OF  CASES. 


4235 


[REFERENCES  are  to  pages.] 


Greeff  v.  Equitable  Life  Assur.  Soc, 

1012,  1013. 
Green  v.  Ames,  498. 

v.  Beals.  3188. 

v.  Bliss,2357. 

v.  Brown,  959,  1004,  2238. 

v.  Bullard,  3296,  3313. 

v.  Burke,  3121,  3122. 

v.  Burnham,  3398. 

v.  Carey,  1782,  1S05. 

v.  Davies,  4047,   404S,  4049. 

v.  Disbrow,    438,   496,   497,   498. 

v.  Givan,  2091. 

v.  Griswold,  3408. 

v.  Hauser,  477,  3260. 

V.Middlesex  R.  Co.,  1819,  1820. 

v.  Middlesex  Valley  R.  Co.,  1823. 

v.  Milbank,  241,  421,  2803. 

v.  Raymond,  1073. 

v.  Roworth,   2676,   2726. 

v.  Shute,  2298,  2681. 

v.  Squires,   772,  773,  774. 

v.  Stewart,  961. 

v.  Telfair,  2352. 

v.  Trustees    of   Village    of    Can- 
andaigua,  2911. 

v.  Waite,  402S. 

v.  Warren,  663. 

v.  Willis,   2175,  2864. 

v.  Wood,  3634. 

v.  Young,  3208. 
Greenbaum  v.  Dwyer,  766. 
Greenberg  v.  Angerman,  2870. 
Greenblatt      v.      Mendelsohn.      4123, 

4147. 
Greene  v.   Bunzick,   3222,  3242. 

v.  Martine,   2080,   2089. 

v.  Odell,  329. 

v.  Smith,  2387. 

v.  White,  3868. 
Greenfield  v.  City  of  New  York,  280. 

v.  Massachusetts   Mut.   Life   Ins. 
Co.,  391,  946,  1063. 

v.  People,  2341. 
Greenhall  v.  Unger,  3300. 
Greenleaf    v.    Brooklyn,    F.    &    C.    F. 
R.  Co.,  2867. 

v.  Brooklyn,    F.    &   C.    I.    R.   Co., 
2172. 

v.  Mumford,  1411,  1460,  1474. 
Greenlich  v.  Rose,  3300. 
Greenspan  v.  Neuman,  2295. 
Greensward     v.     Union     Dime     Sav. 

Inst.,  1807. 
Greentree    v.    Rosenstock,    29,    1410, 

1469, 1480. 
Greenwood    v.    Marvin,     2630,     2631, 

2947. 
Greer  v.  Allen,  1779. 

v.  Greer,  2370. 
Gregg  v.  Howe,  2030,  2032,  2033. 

v.  Murphy,  3088. 
Gregory  v.  Brooks,  2231. 

v.  Campbell,  2640. 

v.  Clark,  2665,  2676. 

v.  Cryder,  2626-2628. 

v.  Dodge,  2370. 

v.  Fichtner,  492,  2236. 

v.Gregory,  47,  547,  1624. 

v.  Levy,  1365. 

v.  Lindsay,  3866. 

v.  McArdle,  2916. 


Gregory  v.  New  York,  L.  E.  &  W.  R. 
Co.,  2240. 

v.  Stout,  1922. 

v.  Trainer,  911. 

v.  Valentine,  3411. 
Greismann  v.  Dreyfus,  1788,  1800. 
Greite  v.  Henricks,   330,   3641. 
Grening  v.  Malcolm,  2677. 
Greton  v.  Smith,   2245. 
Greve  v.  Aetna  Live  Stock  Ins.  Co., 

348. 
Grevell  v.  Whiteman,   1392,   3106. 
Grey    v.    Sheridan    Elec.    Light    Co., 
1472,    1545. 

v.  Vorhis,   879. 
Gribbon  v.  Back,  1444. 

v.  Free,  720,  1387. 

v.  Ganss,   1444. 
Gridley    v.    Daggett,    2532. 

v.  Gridley,      63,      870,     871,     874, 
1065. 

v.  Rowland,  50. 
Grieb   v.   Northrup,   1429,    3194. 
Griebel    v.    Rochester    Printing   Co., 

2304. 
Grier  v.  City  of  Lockport,  2940. 
Griffen  v.   Brown,  2916. 

v.  Davis,  4143. 
Griffin,  In  re,  323. 
Griffin  v.  Barton,   2194. 

v.  Chase,   31S0. 

v.  Cohen,   1026. 

v.  Condon,   955. 

v.  Dominguez,   3299. 

v.  Griffin,    478. 

v.  Jackson,   4020. 

v.  Long  Island   R.    Co.,    945,   946. 

v.  Marquardt.    3902. 

v.  Miner,  2650. 

v.  Norton,   4010. 

v.  Round    Lake    Camp    Meeting 
Ass'n,  1914. 

v.  Sutherland,    1418. 

v.  Todd,  1092. 

v.  White,  2321,   2322. 
Griffing  v.  Diller,  2760. 
Griffith  v.   Dodgson,   4055. 

v.  Friendly,    68. 

v.  Griffith,    256. 

v.  Hadley,   3229,   3230. 

v.  Staten    Island    Rapid    Transit 
Co.,   2301. 
Griffiths  v.  De  Forest,  1990,  1993. 

v.  Hardenbergh,    3864. 
Griggs  v.   Brooks,   278,   280,   3022. 

v.  Day,    2673,    3048,    3880. 
Grill  v.   Wiswell,  1564,   1577. 
Grim   v.   Dyar,    465. 
Grimes   v.    DaVison,    1317. 
Grimshaw  v.  Woolfall,   77,   1012. 
Grimstone  v.  Carter,  1600. 
Grinnell  v.   Schmidt,  389. 

v.  Sherman,  3286,  3341. 
Griscom,  Matter  of,  3658. 
Grissen    v.    Southworth,    1765. 
Griswold,  Matter  of,   1530. 
Griswold  v.   Caldwell,   428. 

v.  Dexter,   2722. 

v.  Havens,  3923. 

v.  Sheldon,    182. 

v.  Stoughton,  2849. 

v.  Sweet,  1281. 


4236 


TABLE  OF  CASES. 


|  REFERENCES    ARE  TO   PAGES.] 


Griswold  v.  Tompkins,  3332,  3369. 

v.  Van    DeusiMi,    399S. 

v.  Watkins,   920. 
Groat  v.  Gillespie,   1547. 
Grob      v.      Metropolitan      Collecting 

Agency,    1522. 
Grocers'   Bank  v.   Bayaud,   3302. 

V,  -Murphy,    1084,    3261. 

v.  O'Rourke,   951. 
Grocers'    Nat.    Bank    v.    Clark.    378, 

816. 
Groff  v.  Bliss,  207. 

v.Jones,    3142. 

v.  Rowe    Metallic    Bedstead    Co., 
4151. 
Groh  v.  Flammer,  40,  50. 
Groh's  Sons,   M.   v.  Groh,  2267,  2277, 

3859. 
Groot  v.  Agens,  988. 
Grosfent  V.  Tallman,  2945. 
Groshon  v.  Lvon.  997,  998. 
Gross   v.    Bock,    1077,    1841. 

v.  Clark,   627,  656,  8S0. 

v.  Granite    State    Provident 
Ass'n,  2172. 

v.  Graves,  1286,  1288. 

v.  Gross,  983. 

v.  Mather,  45. 
Grossman    v.    Supreme   Lodge    K.    & 

L.    of   H.,    2671,    2682,    3631. 
Grosvenor  v.   Allen,   2799. 

v.  Hunt,   2111. 

v.  Sickle,    1450. 
Groth  v.   Washburn,   482. 
Grout,  Matter  of,   3631. 
Grout   v.   Cooper,   476. 

v.  Strong,   1785. 
Grove,  Estate  of,   674. 
Grover  v.   McNeely,   1631,    3368. 

v.  Morris,  480. 
Grover   &   Baker   Sewing  Mach.   Co. 

v.    Kimball,    363. 
Groves  v.  Acker,  2300. 
Grow  v.  Garlock,  3747,  3751. 
Gruenberger  v.  Treanor,  4103. 
Gruenstein    v.    Jablonsky,    829,    1071. 
Gruhn   v.   Gudebrod  Bros.   Co.,    81. 
Grunberg   v.    Blumenthal,    3669. 
Grupe  v.  Brady,   2711. 
Guarantee   Sav.   Loan   &  Inv.   Co.   v. 

Moore,   1515,   1518. 
Guarantee  Trust  &  Safe  Deposit  Co. 
v.  Philadelphia,  R.  &  N.  E.  R.  Co., 
634,   1651,   3691,    3695,   3696,    3707. 
Guaranty    Trust    Co.     v.     Robinson, 

2149,    2563. 
Guardian  Sav.  Inst.,  Matter  of,  2634. 
Guardian     Sav.      Inst.     v.     Bowling 

Green   Sav.   Bank,   1650. 
Guarino  v.  Fireman's  Ins.  Co.,  4092, 

4101. 
Guckenheimer     v.     Angevine,     2972, 

3036,  3955. 
Guell   v.   Lenihan,   2089. 
Guenther  v.  Amsden,   1033,  2298. 
Guerineau    v.   Weil,    1681. 
Guernsey  v.  Carver,   54. 

v.  Miller,   3786. 
Guggenheimer  v.  Stephens,  3297. 
Guidet  v.   City  of  N.   T.,   3832. 
Guiet  v.   Murphy,  1704. 
Guilford  v.  Jacobie,   48,   2928. 

v.  Mills,    3101,    3385. 


Guilfoyle  v.   Pierce,   3726,   3751. 

v.  Seeman,   271,    154 4. 
Guilhon  v.  Lindo,  1075,  1389. 
Guilleaume  v.   Rowe,  271. 
Guillotel  v.  City  of  New  Cork,  448. 
Guinan    v.   Allan,    1502,    1503,    2644. 

v.  Guinan,   2587. 
Guiterman  v.   Liverpool,  N.   Y.   &  P. 

Mail   Steamship   Co.,   1040. 
Gulerette    v.    McKinley,    2255,    2256, 

2260. 
Guliano  v.  Whitenack,  272,  293,  299, 

302. 
Gumb   v.    Twenty-third   St.    Ry.   Co., 

2365. 
Gumby  v.   Metropolitan   St.   Ry.   Co., 

2260,   2261. 
Gundlin        v.        Hamburg- American 

Packet  Co.,   2275,   4054. 
Gunther   v.    Greenfield,    431. 
Gurley  v.   Gruenstein,   4064. 
Gurnee  v.  Hoxie,  585,  1664,  2170. 
Gurney  v.  Grand  Trunk  Ry.  Co.,  996. 

v.  Smithson,   2321. 
Gustaf   v.   American   S.   S.   Co.,    1811. 
Gutbrecht  v.  Prospect  Park  &  C.  I. 

R.   Co.,   3719,   4002,   4003. 
Gutt  Percha  &  Rubber  Co.  v.  Inhab- 
itants of  Houston,  1391. 
Guttentag  v.   Whitney,   1039. 
Guttroff  v.  Wallach,  1996. 
Guttroff's  Estate,  Matter  of,  4073. 
Guy  v.  Craighead,   2282. 
Guyon   v.   Lewis,    1727. 

v.  Rooney,  2676. 
Guyot  v.   Butts,   2706,   2708. 
Gwalter  v.  New  York  Seal  Plush  & 

Tapestry   Co.,    1518. 
Gwathney  v.  Cheatham,  2109. 
Gzuchy  v.  Hillside  Coal  &  Iron  Co., 

3877. 


If 


H. 

-,    Matter    of,    274,    286,    291, 
292. 
Haake  v.  Reynolds,  2732. 
Haas    v.    Brown,    2345. 
v.  Colton,    1052. 
v.  Craighead,   725. 
v.  Selig,    44. 
v.  Swick,    1486. 
Haase,  Matter  of,  3812. 
Haberstich   v.    Fischer,    1667. 
Haberstro     v.     Bedford,     1355,     1357, 

1362,  1363,  1366. 
Habrich   v.   Donohue,   954. 
Hacker   v.    Ferrill,    197. 
Hackett  v.   Belden,    2093,    3609,   3715. 

v.  Edwards,   1995. 
Hackley  v.  Draper,  1643,  1651. 
v.  Hastie,    2350,    2700. 
v.  Ogmun,   845. 
v.  Patrick,    1735. 
Hadcock   v.    O'Rourke,    2224. 

v.  Osmer,  2071. 
Hadden  v.  New  York  Silk  Mfg.  Co., 
1079. 
v.  St.    Louis,    I.    M.    &   S.    R.    Co., 
51,   958. 
Hadley  v.  Boehm,  1054. 
Haebler    v.    Bernharth,     1383,     1441, 
1443,    1526. 


TABLE  OF  CASES. 


4237 


[REFERENCES  are  to  pages.] 


Haebler  v.  Hubbard,  1784,  1790,  1809. 

v.Myers,    782,    1528,    3909,    3910, 
3911,    4024. 
Haff  v.    Spicer,    539. 
Haffey  v.  Lynch,  1058. 
Haffner  v.  Schmuck,  2238. 
Hafner  v.    Hafner,    3018. 
Hag-adorn   v.   Connecticut  Mut.   Life 

Ins.  Co.,  2195. 
Hagaman  v.  Jackson,  3136. 
Hagen   v.    New   York   Cent.    &  H.    R. 
R.  Co.,  2352,  2707,  2708,  2733,  4167, 
4168. 
Hagenbuckle  v.  Schults,  3021. 
Hager   v.    Danforth,   1978. 

v.  Hager,    2317,    2692,    2701. 

v.  Tibbits,  963. 
Hagertv  v.  Andrews,  106S. 
Haggart  v.  Morgan.  1394,  1396,  1508. 
Haggerty  v.  Phelan,  1045. 

v.  Rogers,    3291. 

v.  Ryan,   872. 

v.  Wilber,    1338,    3116. 
Hagmayer  v.   Alten,   433. 
Hahlin's   Estate.  Matter  of,   341. 
Hahn,  Matter  of,  251,  254,  282. 
Hahn  v.  Anchor  Steamship  Co.,  753. 
Haig  v.   Boyle,   2563,    2567. 
Haigh   v.    Crocker.    1591. 
Haight  v.  Avery,  530. 

V.  Brisbin.   689. 

v.  Child,  832. 

v.  Citv     of     Elmira,     2220,     2700, 
2704,    2734. 

v.  Hayt,    2081. 

v.  Holley,  46. 

v.  Husted,    759. 

v.  Littlefleld,  2597. 

v.  Moore,  658,   665. 

v.  Turner,  536. 

v.  Webster,  64. 
Haines  v.  Davis,  2169,   2174. 

v.  Hein,    680. 

v.  Herrick,    945. 

v.  Jerolman,   319*8. 

v.  New    York   Cent.    &   H.    R.   R. 
Co.,   2291,   2294. 

v.  Patterson,  2813. 

v.  Reynolds,   4152. 

v.  Taylor,    3221,   3227. 
Haist  v.  Bell,   2695,   2721. 
Haiz  v.   Starin,   1929. 
Halben  v.   Reilly,  1467. 
Halbert   v.    Gibbs,    274. 
Hale  v.  Andrus,   485. 

v.  Clauson,    3228,    3230,   3239. 

v.  Mason,    1893,    1897. 

v.  Omaha  Nat.  Bank,  1002. 

v.  Prote,    1462. 

v.  Rogers,    1796,    1802. 

v.  Shannon,   2076,  2082,  2087. 

v.  Sweet,   3101. 
Hall    v.    Anderson,    1398,    1462. 

v.  Ayer,   3205. 

v.  Bartlett,    12,    265. 

v.Barton,   1744,  1745,  1757,   1759, 
1761. 

v.  Bennett,    49. 

v.  Beston,  2377,  2385,  2771. 

v.  Brennan,    453,   504,   508,    912. 

v.  Brooks,  1493,  1501. 

v.  City  of  N.  Y.,  3685,  3721. 

v.  Conger,    1315. 


Hall  v.  Ditson,  2761. 

v.  Earnest,    2273. 

v.  Emmons,    640,    645,    3952. 

V.Fisher,  3172,  3173,  3175. 

v.  Gilman,  3631,  3897,  4047,  4050, 
4067,  4113. 

v.  Gird,  266. 

v.  Hall,  186,  187,  766. 

v.  Hodskins,   2907. 

v.  Holt.   1704,    1705. 

v.  Lanza,    3765,    4066. 

v.  Ledlie,    1476. 

v.  Louis  Weber  Bldg.  Co.,  64. 

v.  McMahon,    1285,    3334. 

v.  Putnam,    281. 

v.  Redington,    1S06. 

v.  Sampson,    1413,   3114. 

v.  Sawyer,  240. 

v.  Sherwood,    3035. 

v.  State,   3907,    3916. 

v.  Storre,  498. 

v.  Stryker,  1406,  1414,  1441,  1494. 

v.  Templeton,   1897. 

v.  Thomas,   3160,   3177. 

v.  United    States    Radiator    Co., 
3861. 

v.  United    States    Reflector    Co., 
341,   1527,   2998,    3854. 

v.  Waterbury,   1545. 

v.  Werney,    4028. 
Hallahan  v.   Webber,   832. 
Hallen  v.  Jones,   1330. 
Hallenback   v.   Whitaker,   549. 
Hallenbeck    v.    Garner,    3151. 

v.  Kindred,   381. 

v.  Parr.  1S34. 

v.  Smith,   2677. 
Hallenborg     v.     Greene,     135,     1561, 

4054,  4112. 
Halleran  v.  Field,  1759,  1766. 
Hallet  v.   Cotton,   2744. 
Hallett  v.  American  Law  Book  Co., 
1S41,    1849,    1854. 

v.  Hallett,  47,   1078,  2087,  2116. 

v.  Righters,   795,   2824,    2854. 

v.  Thompson,    302,    3402,   3405. 
Halliburton  v.   Clapp,   975. 
Halliday   v.   Barber.    1074. 
Hallinan   v.   Village  of  Ft.   Edward, 

2939. 
Hallock   v.   Bacon,    13. 

v.  Losee,    497. 

v.  Van   Camp,    1452. 
Halpern  v.  Nassau  Elec.  R.  Co.,  2308. 
Halpin  v.  Phenix  Ins.  Co.,  2011,  2665. 
Halsey  v.   Carter,   587,   2628. 

v.  Flint,   3929. 

v.  Halsey,   3986. 

v.  McCullum,    2921. 

v.  Rome,  W.  &  O.  R.  Co.,  2338. 

v.  Tradesmen's  Nat.   Bank,   1034. 

v.  Watson,  2706. 
Halsey's   Estate,    Matter   of,    3975. 
Halstead  v.  Black,  852. 

v.  Cockcroft,    2095. 
Halsted   v.   Halsted,    1053,   3061. 

V.Manhattan   R.  Co.,  2195. 
Hamburger   v.   Baker,    810,    812,   961, 
1410. 

v.  Rodman,    3704. 
Hamer  v.  Sidway,  443. 
Hamerschlag  v.  Cathoscope  Electri- 
cal Co.,   1522,  1524. 


1238 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


games  v.  J  add,  1739. 
Hamill   v.  Gillespie,  3132. 
Hamilton   v.   Accessory   Transit  Co., 
1562. 

v.  Butler,    2970,   2973,   2976,   2986. 

v.  Eno,  2338. 

v.  Faber,   50. 

v.  Gibbs,   883,   901. 

v.  Hudson,  180S. 

v.  Manhattan    Ry.   Co.,   2260. 

v.  New  York  Cent.  R.   Co.,   2275, 
2368. 

v.  Owego  Water  Works,   2353. 

v.  Pennev,   1390,   1434. 

v.  Piza,  2150. 

v.  Royal   Ins.   Co.,    517. 

v.  Steck,   1439,   1441. 

v.  Third   Ave.    R.    Co.,    706,    2343, 
2344,   2355. 

v.  Wright,  268. 
Hamilton     Nat.     Bank     v.     Halsted, 

3416,  3428. 
Hamlin   v.    Boughton,    2840. 

v.  Sears,  378S. 

v.  Smith,  526,  529. 
Hammann,  Matter  of,   285,   286. 
Hammer  v.   Barnes,   142,   410. 
Hammond  v.   Baker,    1919. 

v.  Carpenter,   3646. 

v.  Cockle,   59,   60. 

v.  Dean,    2S0. 

v.  Earle,    1065. 

v.  Hudson    River    Iron    &   Mach. 
Co.,  3412. 

v.Mather,    3085. 

v.  Morgan,   2164,   2779. 

v.  Terry,   1092. 
Hampton  &  B.   R.   &  Lumber  Co.  v. 

Sizer,   1413. 
Hancock  v.   Bliss,   521. 

v.  Hancock.   2092,   2770. 

v   Sears     3307. 
Hand'   v.    Burrows.    427,    707,     1733, 
3631. 

v.  Callaghan,    3845,    3848. 

v.  Dorchester,  3892. 

v.  Kennedy,   381,  2145. 

v.  Rogers,  3832. 

v.  Shaw,    854,    1082,    1901. 

v.  Society  for  Savings,   204. 
Handshaw   v.    Arthur,    4021. 
Handy  v.   Dobbin,    3107. 

v.  Powers,    3859. 
Hanel  v.  Baare,  2977,   2988. 
Haner  v.  Bliss,  2555. 
Hanford   v.   McNair,   564,    2172,    2874. 
Hangen  v.  Hachenmeister,  1765. 
Hankins   v.    Hanford,    358. 
Hankinson  v.   Page.    812,   1409,   1466. 

v.  Vantine,    2263. 
Hanks  Dental  Ass'n  v.  International 

Tooth  Crown  Co.,   4143. 
Hanley  v.  Brennan,   2038,  2263. 
Hanlon   v.    Ehrich,   3868,   4160. 

v.  Supervisors    of    Westchester, 
1591. 
Hanmer  v.  Wilsey,  3194. 
Hann  v.  Barnegat  &  L.   B.  Imp.  Co., 
128 

v.  Culver,   471,   472. 
Hanna  v.   Curtis,   574. 

v.  Dexter,    256. 

v.  Manufacturer's  Trust,  4146. 


Hanna  v.  People's  Nat.  Bank,  480. 
Hannah,  Matter  of,  3988. 
Hannah  v.   McKcllip,   2258. 
Hannahs  v.  Hammond,  1007. 
Hanover  Co.  v.  Sheldon,   1305. 
Hanover   Fire   Ins.  Co.   v.   Germania 
Fire    Ins.     Co.,     1558,     1633, 
2388,  3010,  3014,  3025  3636. 

v.  Tomlinson,    177,    2842,    3632. 
Hanover     Nat.     Bank     v.     American 
Dock  &  Trust  Co.,  3926. 

v.  Linneworth,    2996. 

v.  Stebbins,   1395,   1396. 
Hanrahan  v.  Ayres,   2350,   2700. 
Hansee  v.   Fiero,    2802,    2877,    3071. 
Hansen   v.    Burt,    2290. 
Hanser  v.  Luther,   876. 
Hanson  v.  Langan,  825,  1325,  1348. 

v.  Marcus,    1444. 

v.  Tripler,  3257,  3299. 
Harbison  v.  Von  Volkenburgh,  1829. 
Hard  v.  Ashley,   2264. 

v.  Densmore,    2262,    2342. 

v.  Shipman,    136. 
Harden  v.  Corbett,   29. 

v.  Hardick,   2120. 
Hardenbrook's   Case,    1309. 
Hardenburgh    v.     Crary,     116,    2200, 

2700,   2703. 
Harder  v.   Hardner   574. 
Harding  v.   Elliott,    1410,    1495,   2273. 

v.  Ellston,    4035. 

v.  Field,   1830,    1834. 

v.  New  York  L.  E.  &  W.  R.  Co., 
2349. 

v.  Pratt,  3999,  4028. 
Hardon  v.  Dixon,  1468. 
Hardt  v.  Levy,  1654. 

v.  Norton,   2245,   2350. 

v.  Schulting,    3044,    3768,    3789. 

v.  Schuylkill   Plush    &    Silk    Co., 
1530. 
Hare   v.   De   Young,    4060. 

v.  Mahony,   2274. 
Harger    v.    Edmonds,    2230. 
Hargin  v.  Wicks,  3144,  3223. 
Hargous  v.  Lahens,    2007,   2011. 
Harker  v.   City  of  New  York,  832. 

v.  McBride,   639. 
Harkins  v.  Queen  Ins.  Co.,  4161. 
Harland  v.  Howard,  1301,  1325,  1337, 
1338. 

v.  Lilienthal,    2250. 
Harlem  Bank  v.  Todd,  2631. 
Harlem    Bridge   M.    &    F.    R.    Co.    v. 
Town  Board  of  Westchester,  3006. 
Harlow,  Matter  of,   3989. 
Harlow    v.    Southworth,    1647. 
Harman  v.   Remsen,   1469. 
Harmon,   Matter  of,    2801. 
Harmon  v.  Hope,   2804,  2806. 

v.  Van  Ness,  352,  1942. 
Harnes  v.   Tripp,   895. 
Harnett  v.  Garvey,   2241. 

v.  Westcott,    3682,    3692. 
Harney  v.   Provident   Sav.    Life   As- 

sur.   Soc,   1025. 
Harnicall  v.  Parrott  Silver  Min.  Co., 

2232. 
Harold  v.  New  York  El.  R.  Co.,  2322, 

2709. 
Harp   v.   Osgood,    1367. 
Harpending  v.  Shoemaker,  28. 


TABLE  OF  CASES. 


4239 


[REFERENCES  are  to  pages.] 


Harper  v.  Chamberlain,  995. 

v.  Fairley,  528. 

v.  Leal,  1429. 
Harrigan  v.  Golden,  3239,  3245. 
Harrington  v.  Bayles,   3247. 

v.  Higham,    34. 

v.  Slade,     177,    1030,     1039,    1059, 
3630,    3633. 

v.  Strong,  2952. 
Harriott  v.  New  Jersey  R.  &  Transp. 
Co.,  2903. 

v.  Wells,   1048. 
Harriott's    Estate,    Matter    of,    3890, 

3975,    3978. 
Harris    v.    Aktiebolaget    Separator, 

v.  Bennett,   676,   2078. 

v.  Bradley,   1929. 

v.  Bradshaw,   2559. 

v.  Brown,  644,   645,  3671. 

v.  Buchanan,  4161. 

v.Clark,  86,  175,  341,  630,  2842. 

v.  Ditson,  2709. 

v.  Durkee,  559,  1347. 

v.  Eldridge,  1005. 

v.  Elliott,  410,  983,  996,  1053, 
1060,  2790,  3059,  3060. 

v.  Gregg,  2656. 

v.  Hammond,   107S. 

v.  Hardy,  1373. 

v.  Jex,  2007. 

v.  Lyman,   1416. 

v.  Morange,   2671. 

V.Murray,    3151. 

v.  Mutual    Ins.    Co.,    1873,    1878, 
1879. 

v.  Northern  Indiana  R.  Co.,  2334. 

v.  Osnowitz,    3426,    3943. 

v.  Taylor,    549,   3664. 

v.  Todd,   30. 

v.  Tumbridge,   1029.   3907. 

v.  Van    "Wagenen,    627,    2131. 

v.Wilson,    1748,   2314. 
Harris'  Estate,   Matter  of,   2607. 
Harrisburg     Pipe     Bending     Co.     v. 

Welsh,   1325. 
Harrison  v.  Ayers,  2957. 

v.  Forsyth,   3866. 

v.  Gibbons,   2883,   2890,    2891. 

v.  Harrison,    1611,    1612,    1613. 

v.  Neher,   3671,   3787,   3842. 

v.  Newton,  1563. 

v.  Obermever  &  Liebmann  Brew. 
Co.,  3370. 

V.  Piatt,   3233. 

v.  Swart,    3945,    4035. 

v.  Wallis,    4053. 

v.  Weir,    3708. 

v.  Wilkin,   3187. 
Harrold    v.    New    York    El.    R.    Co., 

2336. 
Harroun    v.    Brush   Elec.    Light   Co., 

3624,   3701. 
Harroway  v.  Flint,  1402. 
Harrower  v.  Betts,  1937. 

v.  Heath,    1041. 
Harry  v.  Hilton,  271. 
Hart  v.  Albright,   3383. 

v.  Bernau,   1443. 

v.  Brooklyn     El.     R.     Co.,     1919, 
2151. 

v.  Chase,  1796. 

v.  Faulkner,    575. 


Hart  v.  Hart,  2958,  4046. 

v.  Hudson      River     Bridge     Co., 
2256. 

V.Johnson,    15,    3268,    3639,    3643. 

v.  Kennedy,  1313,  1340. 

V.  Kip,  506. 

v.  Malony,   4158. 

v.  Oatman,    360. 

v.  Ogdensburg    &    L.    C.    R.    Co., 
1595,    1750,    1829. 

v.  Ryan,  2319. 

v.  Sexton,    1550. 

v.  Stearns,  3278. 

v.  Storey,    2117. 

v.  Thompson,   3872. 

v.  Washburn,    2103,    2877. 
Harter  v.  Westcott,  1609 

v.  Westeott's    Exp.    Co.,    3651. 
Hartford     Nat.     Bank     v.     Beineeks, 

988. 
Harthouse  v.  Rikers,  1421. 
Hartigan  v.  Nagle,   2S70. 

v.  Smith,    3237. 
Harting  v.   Rosenfeld,   1403. 
Hartley  v.   James,   891. 

v.  Mullane,    1083,    2291. 

v.  Requa,   525,    527. 
Hartman,   In  re,   604. 
Hartman  v.  Manhattan  Ry.  Co.,  1086, 
2143. 

v.  Morning  Journal   Ass'n,   2704. 

v.  Proudfit,    2679. 
Hartman   v.    Burtis,   3898. 

v.  Spencer,   1946. 

v.Hoffman,  1458. 
Hartness  v.   Thompson,   2362. 
Hartshorn  v.   Gelston,   2055. 
Hartt  v.   Harvey,  1591. 
Hartwell   v.   Bissell,    3121. 

v.  Root,    3127. 
Hartwig   v.    American    Malting    Co., 

1763. 
Harvey   v.   Arnold,    3306. 

v.  Brisbin,   1013,   3389. 

v.  Fargo,    2714,    3003,    4168. 

v.  Rickett,   2353,   4010. 

v.  Van    Dyke,    4028. 
Harway  v.  Mayor  of  New  York,  976. 
Harwood,  Matter  of,  2947. 
Hasberg  v.   Moses,   4092,   4114. 

v.  Mutual  Life  Ins.  Co.,   843. 
Hasbrouck  v.   Bouton,   3107. 

v.  Disbrow,   1065. 

v.  McAdam,  1942. 

v.  New  Paltz,   H.   &   P.   Traction 
Co.,    2763,    4114. 
Hascall    v.    King,    3023,    3922,    3958, 
3965. 

v.Madison       University,       1597, 
1599. 
Haskell   v.   Osborn,   1390,   1435,   1442. 
Haskin,    Matter    of.    2S5. 
Haskin   v.   Murray,    1680. 
Hasler  v.   Johnston,    1884. 
Hassam   v.    Griffin,    1987. 
Hassard  v.  United  States  of  Mexico, 

143. 
Hassler   v.    Turnbull,   2629. 
Hastings  v.  Lusk,  247. 

v.  McKinley,      377,      1055,      2652, 
2727. 

v.  Palmer,  2224,  3396. 
Haswell  v.  Bates,  1364. 


4240 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Has  well  v.   Lineks,   756. 

Hat    Sweat    Mfg.    Co.    v.    Reinoehl, 

I  11. 
Hatch    v.    Attrill,    2274,    23G3. 

v.  Central  Nat.  Bank,  1027,  1037, 

2S24. 
v.  City  of  New  York,   969. 
v.  Collins,    3120. 
v.  Matthews,  926. 
v.  Spooner,  26S5. 
v.  Weyburn,  3284. 
Hatfield,  Matter  of,   3339. 
Hatfield  v.  Atwood,  794. 
v.  Malcolm,  2588. 
v.  Secor,    704. 
v.  Todd,  991. 
Hathaway   v.    Bray  man,    1413. 
v.  Helmer,   2196. 

v.  Howell,    651,    2796,    3066,    3115. 
v.  Johnson,  1273,  1274,  1282,  1289, 

1291,  1304. 
v.  Orient   Ins.    Co.,    404. 
v.  Russell,   2608,   2617,  2619. 
v.  Scott,   539. 
v.  Warren,    190. 
Hathaway's  Estate,  Matter  of,  3084. 
Hatheway    v.    American    Min.    Stock 

Exch.    750. 
Hathorn     v.     Congress     Spring    Co., 

962. 
Hatton  v.  McFaddin,   3740,   3750. 
Hatzel  v.   Hoffman  House,   9S4. 
Hauck  v.  Craighead,  1032,  1037. 
Haughian  v.  Conlan,  3017. 

v.  Conlon,  158. 
Haulenbeck  v.  Heacock,   1636. 
Haulish  v.  Boiler,   2247. 
Haupt  v.   Ames,   977. 

v.  Pohlmann,   2334,   2347. 
Hauptner   v.   White,    855. 
Hausauer  v.   Maehawicz,  2914. 
Hauselt  v.  Bonner,  3034. 
v.  Fine,    924. 
v.  Gano,   3082. 
v.  Godfrey,   3949. 
v.  Patterson,   469,    475. 
v.  Vilmar,   2932. 
Hausling  v.   Rheinfrank,   4142,  4156. 
Hausmann   v.   Moore,   1930,   1934. 
Haux   v.   Dry  Dock   Sav.   Inst.,   1677. 
Havana    City    Ry.    Co.    v.    Ceballos, 

268,    884,   988. 
Havemeyer  v.   Brooklyn    Sugar   Re- 
fining Co.,   10S4. 
v.  Havemeyer,  3604,  3969. 
v.  Ingersoll,    107. 
Havemeyer      Sugar      Refining      Co., 

v.  Taussig,   1351,   1353. 
Haven  v.  Meteer,  1667. 
Havens  v.  Healy,  3402. 

v.  National  City  Bank  of  Brook- 
lyn, 3257. 
Haviland  v.  Wehle,  47. 

v.  White,    17. 
Hawes  v.  Barr,  3258,  3281. 

v.  Dobbs,   2765. 
Hawk  v.  American  News  Co.,  963. 

v.  Thorn,   63. 
Hawke    v.    Hawke,    1593. 
Hawkins   v.    Avery,    140,    2573. 

v.  Dutchess     &    Orange    Steam- 
boat Co.,   236. 
v.  Macy,   1769. 


Hawkins  v.  Mapes-Reeve  Const.  Co., 
4069,  4109,  4155. 
v.  Pakas,    559,   1434,   1526. 
v.  Pelham      Electric      Light      & 
Power  Co.,   348. 
Hawley,   Matter  of,   443. 
Hawley  v.   Bennett,   1603,    1604. 
v.  Davis,    1992. 
v.  Donnelly,  537,   538. 
v.  Grisold,   531. 
v.  James,  3402. 
v.  Whalen,    184,    514. 
Hawxhurst    v.    City    of    New    York, 

397. 
Haxton  v.  Bishop,   1648. 
Hay  v.  Cole,  2890. 
v.  Douglas,   2245. 
v.  Power,   1901,    1908. 
Hay    Foundry    &   Iron   Works,   Mat- 
ter of,  328. 
Hayatt  v.   Ingalls,   47. 
Hayden    v.    Agent   of   Auburn    State 
Prison,    3121. 
v.  Bank  of  Syracuse,  744. 
v.  Hayden,   1880. 
v.  Mathews,    3024. 
v.  Mullins,  1447. 
v.  National    Bank,    1469. 
v.  Palmer,    2688. 
v.  Pierce,    441,    442,    505,    510. 
v.  Van  Cortlandt,  1833,  1839. 
Hayes   v.   Carr,   259. 

v.  Carrington,    1364. 

v.  Consolidated     Gas     Co.,     1685, 

3594,    3636. 
v.  Davidson,   1550. 
v.  Garson,   1958. 
v.  Kedzie,    4028. 
v.  Kerr,  1041,   1042. 
v.  Maytham,  4019. 
v.  Nourse,   2083,   3666,    3910. 
v.  O'Reilly,    2916. 
v.  Second  Ave.  R.  Co.,  1873,  1889. 
v.  Third  Ave.   R.   Co.,   2241,   2316. 
v.  Thompson,     2198,     2702. 
Hayner    v.    American    Popular    Life 

Ins.   Co.,   2012. 
Haynes  v.  Buffalo,  N.  Y.  &  P.  R.  Co., 
72. 
v.  Creighton,    1785. 
v.  Hatch,   17S7. 
v.  McKee,   29,   930. 
v.  Mosher,   2987. 
v.  Onderdonk,    714. 
Hays  v.   Berryman,   2S71. 
v.  Phelps,   1815,   2712. 
v.  Robertson,   3033. 
v.  Southgate,   384. 
V.  Thomas,   2092,   3226. 
v.  Union    Trust    Co.,    267. 
Hayt  v.  Malone,   1577. 
Hayward  v.  Hood,  996,  1060. 

v.  Manhattan    Railway   Co.,    510, 
2128. 
Haywood  v.  Nooney,  2807. 
Hazard,   Matter   of,    2808. 
Hazard  v.  Hudson  River  Bridge  Co., 

1593. 
Hazlett  v.   Gill,   278,   1282. 
Hazlewood  v.  Heminway,  1741,  1766.. 
Hazman    v.    Hoboken    Land    &    Imp. 

Co.,   2285. 
H.   B.   Claflin  Co.  v.  Knapp,   869. 


TABLE  OF  CASES. 


4241 


[REFERENCES   ARE   TO   PAGES.] 


H.  B.   Smith   Co.   v.   Chapin,    2698. 
Head   v.    Smith,    116. 

v.  Wollner,    1397,    1398. 
Headdings  v.   Gavette,   2873,    4083. 
Healey    v.    Terry,    2254,    2673. 
Health   Dept.,   Matter   of,   3931. 
Health  Dept.  v.  Police  Dept.,  1573. 
Health   Dept.    of  New  York  v.  Das- 

sori,    3880. 
Healy  v.  Malcolm,  2959. 
v.  Murphy,  2957. 
v.  Preston,    2883,    2884,    3093. 
v.  Twenty-third      St.      Ry.      Co., 
1897,   1900. 
Hearn   v.    Sullivan,    3033. 
Hearst  v.   Shea,   3855. 
Heasty   v.    Lambert,    4044,    4045. 
Heath  v.   Forbes,   2922. 

v.  Glens    Falls,    S.    H.    &    Ft.    E. 

St.  R.  Co.,  2338,  2345. 
v.  Grenell,   529. 

v.  New  York   Bldg.   Loan   Bank- 
ing-    Co.,     2384,     2753,     2808, 
2810,  2827. 
v.  Taylor,    276. 
Heather  v.   Neil.   2947. 
Heaton   v.   Ferris,   2909. 
v.  Leonard,  519,   524. 
v.  Tracy.   2206. 
Hebbard  v.   Haughian,  1810. 
Hebblethwaite   v.    Flint,    2781. 
Hebron   v.   Work,   4139,    4143. 
Hecht  v.   Mothner,    379. 
Hecker  v.  Hopkins,  2205. 
v.  Mayor,  etc.,  1575. 
v.  Michell,    1071,    1074. 
v.  Sexton,    2043,    3236. 
Heckman  v.  Mackey,   1873. 
Hecla     Consol.     Gold     Min.     Co.     v. 

O'Neill,  2777,  3034. 
Hecla  Powder  Co.  v.  Hudson   River 
Ore   &   Iron   Co..    1029. 
v.  Sigua  Iron    Co.,    2360. 
Hedden   v.    Nederburg,   4021. 
Hedges  v.  Bemis,  1936. 
v.  Conger,    1001. 
v.  Methodist  Protestant  Church, 

2560,  2564. 
v.  Payne,  1353. 
v.  Polhemus,   2388. 
v.  "Williams,    1767. 
Heebner   v.    To/wnsend,    3775. 
Heenan    v.    New    York,    W.    S.    &    B. 

Ry.  Co.,  185,  812,  960. 
Heerdegen  v.   Loreck,   2583,   2586. 
Heerdt    v.    Wetmore,    320,    321,    331, 

2594,   2600. 
Heermans    v.    "Williams,    1980. 
Heert  v.   Cruger,    3011. 
Heerwagen  v.  Crosstown  St.  R.  Co., 

3902,   3905. 
Hees  v.  Nellis.  408,  998,  2816,  2958. 

v.  Snell.  550,   3767. 
Heffern  v.  Hunt.   119,  422.  1030,  3654. 
Ilfffron    v.    Jennings,    183. 
Hegeman    v.    Cantrell,   2363. 
Hegerich  v.  Keddie,  2064,  2066,  2070. 
Hegewisch  v.  Silver,  1635,  1639,  2075, 

2079. 
Hehrboss  v.  Bliss,   2274. 
Heidelbach   v.   National   Park  Bank, 

45. 
Heidenbach  v.   Schland,   1395. 

N.  Y.  Prac.  —  266. 


Heidenreich  v.  Hirsh,  4094. 
Heigle  v.   "Willis,    977. 
Heilbronn  v.  Herzog,  1389,  2207. 
Heilman    v.   Lazarus,    3019. 
Heilner  v.  Barras,  815. 

v.  Walsh,   3090,    3097. 
Heim  v.  Davenport,   3411. 

v.  Link,  2601. 
Heimers  v.   Davidson,    3959. 
Heine  v.   Rohner,   1030,   1565,   3915. 
Heineman   v.    Van   Stone,    2113. 
Heinemann    v.    Heard,    2223. 
Heinmuller  v.   Grav,   2069,    2096 
Heinrich  v.  Heidt,   4076. 

v.  Van  Wrinckler,    4051. 
Heintz  v.   Dellinger,   2909. 
Heishon   v.   Knickerbocker  Life  Ins. 

Co.,  238,  1791. 
Helck  v.    Reinheimer,   60,   3964. 
Helene    v.    Corn    Exch.    Bank,    4146, 

4148. 
Helgers  v.  Staten  Island  Midland  R. 

Co.,   2743. 
Heller,  Matter  of,  1772. 
Heller  v.  Cohen,  459,  3220,  3234,  3236. 
3244. 
v.  De   Leon,    3308. 
v.  Heller,   2038. 
Heilman    v.    Licher,    1054. 
Hellreigel   v.    Manning,    2230. 
Helmick   v.    Churchill,    4020,    4021. 
Helmken  v.   City  of  N.  Y.,   4161. 
Helmprecht    v.    Bowen,    1878. 
Kelwig    v.    Second    Avenue    R.    Co.. 

2713. 
Hemenway   v.    Knudson,    1742,    1744, 

1745. 
Hemmingway  v.  Poucher,  824,   2391, 

3774. 
Hempstead,     Matter     of,     Town     of, 

2984,   2986. 
Hempstead  v.  Hempstead,   887,  1924. 
Hemson  v.  Decker,   928. 
Henarie  v.  New  York  Cent.  &  H.  R. 
R.   Co.,   3617,   3882,    3883. 
v.Brooks,   3394,    3395. 
v.  Cairns,    532. 
v.  Commercial  Advertiser  Ass'n, 

1012. 
v.  Dougherty,    3889,   4044. 
v.  Fullerton,    1724. 
V.Henderson,    59,    2690,    2744 
v.  Manning,    951,    1079 
v.  Savage,    1052,    2825. 
v.  Stone.    3295. 
Henderson,    Hull   &   Co.    v.    McNally, 

1896. 
Hendricks   v.    Carpenter,   2171,    2866 
v.  Decker,    1055. 
v.  Mechanics'    Bank,   2246. 
v.  Robinson,    3102,    3412. 
Hendrickson   v.    Citv  of  N.    Y.,   3902 
Hennequin  v.   Clews,   1031. 
Hennion   v.   Kipp,   3773,   4005. 
Henricus  v.   Englert,   386,   2945 
Henriques    v.    Garson,    1070. 
v.  Trowbridge.    1070,    1072. 
v.  Yale     University,     1013,     1014, 
1016. 
Henry,  Estate  of  ,1735,  1738. 
Henry  v.  Allen,   3787. 

v.  Bank    of  Salina,   2232. 
v.  Bow,   545,  3028. 


4242 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Henry  v.    Brooklyn   Heights  R.   Co., 
4101. 

v.  Derby,  2948. 

v.  Fowler,  296. 

v.  Furbish,   3348. 

v.  Henry,    78,    1735,    1738. 

v.  Randall.    3373. 

v.  Root,  521. 

v.  Salisbury,  1518,  1529. 
Henry  Huber  Co.  v.  Soles,  2875. 

v.  Warren,    18S7. 
Henry's  Estate,  Matter  of,  3975. 
Henry    &    Co.,    A.    &    S..    v.    Talcott, 

4080,    4120,    4121,    4139. 
Hensberry    v.    Clark,    952. 
Henschel    v.    Harlem    Reporter    Co., 

1053. 
Hentz  v.  Havemeyer,  1035. 

v.  Long  Island  R.   Co.,  1575. 
Hepburn  v.  Archer,  1851. 

v.  Babcock,   837. 

v.  Hepburn,  1914. 

v.  Montgomery,   2637. 
Hepworth  v.  Union  Ferry  Co.,   2075. 
Hequembourg    v.    Bookstaver,    2942. 
Herb    v.     Metropolitan    Hospital     & 
Dispensary,   2145,   2155,   2156,   2157 
2162,  3717. 
Herbage  v.   City   of  Utica,   1803. 
Herbert  v.    Dey,    444. 

v.  Duryee,   1082. 

v.  Griffith,    1930. 

v.  Lawrence,    269. 

v.  Montana  Diamond  Co.,  4113. 

v.  Smith,    779,    3595. 

v.  Stevenson,    2063,    2101. 
Herbst,   Matter   of,    1652. 
Herder  v.  Collyer,  3072. 
Hergman  v.  Dettlebach,  1471,  1475. 
Herkimer  v.    New  York   Cent.    &  H. 

R.    R.   Co.,   3914. 
Herkimer    County    Bank    v.    Brown, 

3104. 
Herkimer    County    Light    &    Power 

Co.  v.  Johnson,  36. 
Herman   v.   Bailey,    1439,    1515,    1516. 

v.  Girvin,  2913,  2914. 

v.  Lyons,   1992. 
Hermann  v.   Aaronson,    1375. 
Hernandez   v.    Carnobeli,    1303. 
Hero  Fruit-Jar  Co.  v.  Grant,  1550. 
Heroy  v.  Gibson,   3351. 
Herrick  v.   Smith,   2252. 
Herring   v.    Hoppock,    3107. 
Herrington   v.    Robertson.    2925. 
Herrman  v.   Gilbert,   1514. 
Herrmann  v.  Herrmann,   2986,   4066. 

v.  Koref,   4162. 
Herschell  v.   Rogers,    3048. 
Hersey  v.  Benedict,  43,  2257,  2267. 
Hertz  v.  Minzesheimer,   2258. 
Herzberg  v.  Boiesen,  1462,   1464. 

v.Murray,    2360,    2364,    2728. 
Herzfeld  v.  Reinach,   2375,  2976. 

v.  Strauss.  3635. 
HEerzig  v.   Metzger,   2745. 
Herzog  v.    Fitzgerald,   1577. 

v.  Heyman,   141. 
Hesdra's  Estate,  Matter  of,  3084. 
Hess,  Matter  of,  328,  338,  30*1,  3060. 
Hess  v.  Allen,  266. 

v.  Buffalo    &    N.    F.    R.    Co..    74, 
1005. 


Hess  v.  Hess,  1411,  1414,  1543. 

v.  Joseph,   285. 

v.  Sloane,  2707,  2708. 

v.  Smith,   3666. 
Hessberg  v.  Riley,   1550,   1551. 
Hesse  v.  Briggs,   1811,   3944. 
Hetch  v.  Bishop,  1353. 
Hetzel  v.    Barber,    3160. 

v.  Esterly,    4140,    4144,    4i00 
Hewett  v.  Chadwick,  3853. 

v.  Cook,   2116. 

v.  Howell,    1923. 
Hewitt  v.    Ballard,   3903,   40>3. 

v.  City   Mills,    3039,    3682. 

v.  Howell,  715,   797,  815,  2559. 
Hewlett  v.  Brown,  1982,  2981. 

v.  Davis,  3242. 

v.Wood,    1766,    1815,    2156,    3397. 
Hewson  v.  Deygert,  3142,  3191. 
Hexter  v.  Pennsylvania  R.  Co.,  3.132. 
Hey  v.  Collman,  3862. 
Heye  v.   Tilford,   3867. 
Heyer  v.  Deaves,   ??20. 
Heyler  v.  New  York  News  Pub.  Co., 

1040. 
Heyman   v.    Smadbeck,    1861. 
Heymann   v.  MIttelstaedt,   1 340. 
Heymer  v.  Arthur,  2128,   2131. 
Heywood    v.    Kingman,    2609,    2641, 
3431. 

v.  Thacher,    3832,    .3833. 
Heywood  Boot  &  Shoe  Co.  v.  Ralph, 

2008. 
Hibbard     v.     Commercial     Alliance 
Life    Ins.    Co.,    2560,    2576. 

v.  Randolph,  1995. 
Hibernia    Nat.     Bank    v.    Lacombe. 

1640. 
Hicenbothem   v.   Lowenbein,    2360. 
Hickenbottom    v.     Delaware,     L.     & 

W.   R.   Co.,   2271,   2693. 
Hickey  v.  Yvelin,  665,  786. 
Hickman    v.    Nassau    Elec.    R.    Co , 

2286. 
Hickok  v.  Hickok,  80. 
Hickok  Aldrich  Co.  v.  Munger,  1935. 
Hickox  v.  Weaver,  262,  281,  384S. 
Hicks   v.    Brennan,   2116,    2827,    2983. 

v.  Charlick,  1851. 

v.  Chittenden,    248. 

v.  Cleveland,  82. 

v.  Eggleston,    4094,   4098,    4099. 

v.  New     Jersey     Car     Spring     & 
Rubber  Co.,   828. 
v.  Shives,    2756. 

v.  Waltermire,    2999. 
Hicksville  &  C.  S.  B.  R.  Co.  v.  Long 

Island   R.    Co..    971. 
Hicok  v.  Coates,   3104. 
Hidden   v.   Godfrey,    4105. 
Hier   v.   Staples,    1091,    2760. 
Higbie   v.    Westlake,    3666. 
Higenbotam   v.   Greed,    869,   877. 
Higgins  v.  Allen,  1610. 

v.  Bailey,   1632. 

v.  Bishop,  1851. 

v.  Callahan,  3950,  3970. 

v.  Chrichton,   999,   3917. 

v.  City  of  New  York,  2082,  2089. 

v.  Crouse,  496. 

v.  Downs,    4176. 

v.  Gedney,   1016. 

v.  Healy,    689,   1507,   1511. 


TABLE  OF  CASES. 


4243 


[references  are  to  pages.] 


Higgins  v.  Higgins,  472. 

v.  Hoppock,   1086. 

v.  McConnell,   1407. 

v.  Starin,    3850. 

v.  Tefft,   2141. 

v.  "Whitney,    3194. 
Higginson     v.     Second     Nat.     Bank, 

1720. 
High   v.   Chicko,   2340. 

v.  Wilson,  2736. 
High    Rock    Knitting    Co.    v.    Bron- 

ner,  891,  897,  3184,  3278. 
Hilborne  v.  Kille,   2118. 
Hildebranfc  v.  Crawford,   2921. 
Hildreth   v.    Carpenter,    1703. 

v.  City  of  Troy,  1296,  2193,  2200, 
2201. 

v.  Harvey,    281. 

v.  Lerche,    3776. 

v.  Seeback,   3273. 
Hiler  v.   Hetterick,   3392,    3412. 
Hill  v.  Alvord,  1702. 

v.  Board    Sup'rs    of    Rensselaer 
County,    442,   445,    510. 

v.  Board  Water  &  Sewer  Com'rs, 
91. 

v.  Bond,    1433. 

v.  Burke,    689,    3725,    3766. 

v.  Covell,    2360,    2361. 

v.  Cummings,    1936. 

v.  Edie,   463,   2912. 

v.  Grant,    1913,    1914. 

v.  Haynes,    3090,   3119. 

v.  Hermans,  569,  610,  3846. 

v.  Knickerbocker  Electric  Light 
&   Power  Co.,   1439. 

v.  McDonald,    442,    469. 

v.  Northrop,    1996,    2224,    2818. 

v.  Thacter,   890. 

v.  Warner,    1071. 

v.  Water     &     Sewer     Com'rs     of 
Watkins,  2209. 

v.White,  479,  1545,  23S9,  3117. 
Hilleary     v.     Skookum     Root     Hair 

Grower  Co.,   4054. 
Hillebrandt,    Matter    of,    285. 
Hiller  v.  Burlington  &  M.  R.  R.  Co., 
745,  749. 

v.  Village     of     Sharon     Springs, 
2217. 
Hilliker  v.  Hathorne,  336. 
Hillis  v.  Bleckert,   1325. 
Hillman  v.  Hillman,   999. 
Hills  v.  Lewis,  1352. 

v.  Peekskill  Sav.  Bank,  3744. 
Hillyer  v.   Le  Roy,   33S5,   3417,    3418, 
3420,  4106. 

v.  Vandewater,  3926. 
Hilton  v.  Carr,  1067. 

v.  Ernst,  3876. 

v.  Patterson,  320,  3298,  3339. 

v.  Sinsheimer,  3093. 
Hilton   Bridge  Const.   Co.  v.   Foster, 
417. 

v.  New   York    Cent.    &   H.    R.    R. 
Co.,  296,  297,  426. 
Himberg  v.   Rogers,   2119. 
Hinchman  v.  Butler,  1941,  1946,  1947. 
Hinck  v.  Dessar,  1293,   1347. 
Hinckel  v.  Stevens,  3882. 
Hinckley  v.   Boardman,   3032. 

v.  Kreitz,  683,  3753,  3772,  3773. 
Hindley  v.  Manhattan  R.  Co.,  4074. 


Hinds  v.  Kellogg,   2619. 

v.  Schenectady  County  Mut.  Ins. 
Co.,  2983. 

v.  Tweddle,  28. 
Hine  v.  Bowe,  2326. 

v.  Cushing,  2253. 

v.  New    York    El.    R.    Co.,    2250, 
2316. 
Hingston  v.  Miranda,  1436. 
Hinkley  v.  Troy  &  A.  Horse  R.  Co., 

402S,  4029. 
Hinman  v.  Devlin,  278,  279,  2639. 

v.  Hare,  1664. 

v.  Pierce,  1908. 

v.  Ryder,  3004. 

v.  Stillwell,  2720. 
Hinsdale  v.   Bankers'   Life   Ins.    Co., 

1861. 
Hinz  v.   Starin,  2876. 
Hirsch    v.    Hutchinson,     1391,     1400, 
1525. 

v.  Livingston,  3236. 
Hirschspring     v.     Boe,     1781,     2001, 

3007. 
Hirsh    v.    American    Dist.    Tel.    Co., 
4159. 

V.Manhattan  R.   Co.,   4046,   4047, 
4109. 
Hirshbach,  Matter  of,  285. 
Hirshbach  v.  Ketchum,  266. 
Hirshfleld   v.    Bopp,    275,    2073,    2078, 
2113. 

v.  Fitzgerald,   2073,   2113. 

v.  Kalischer,    1651. 
Hirshkind  v.  Mayer,   4151. 
Hirst  v.  Brooks,  81. 
Hiscock  v.  Harris,  3919. 

v.  Phelps,  3719,  3720. 
Hiscox  v.   New   Yorker  Staats  Zeit- 

ung,  1700,  1701,  2921. 
Hissong  v.  Hart,  1364. 
Hitchcock  v.  Baere,  1031. 

v.  Peterson,  1305,  1316. 

v.  Wiltsie,  531. 
Hitchings  v.  Kayser,  954. 
Hitchman  v.  Baxter,  723. 
Hite  v.  Chittenden,  3033. 
Hitner  v.  Boutilier,  1440,  1434. 
Hix  v.  Edison  Elec.  Light  Co.,   2681. 
Hixson  v.  Rodbourn,  446,  507,   529. 
H.  Koehler  &  Co.  v.  Brady,  4071. 
Hoag  v.  Lamont,  200. 

v.  Prime,  3752. 

v.  Weston,  46,  879,  881. 

v.Wright,   2251,   2259,  2273. 
Hoar  v.  Wallace,  2564. 
Hoard  v.  Peck,  3864. 
Hobart  v.  Frost,  997. 

v.  Hobart,    621,    2270,    3636,    3657, 
3658,  3659,  3792. 

v.  Martin,  2096. 

v.  Peck,  2096. 
Hoboken    Beef    Co.    v.    Loeffel,    31, 

1289. 
I  inr-iiberger  v.  Baurn,  3887. 
Hochrieter  v.  People,  2269. 
Hodecker  v.  Hodecker,  2383. 
Hodge  v.  Denny,  2705. 
Hodges  v.  Cooper,  2336. 

v.  Friedheim,  3907. 

v.  Porter,  1884. 

v.  Webber,  2070,  2088. 
Hodgkins  v.  Mead,  2365. 


42U 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


Ho. Ionian,   Matter   of,    172,   -199,   3977. 
Hodgman  v.  Barker,  1523. 
Kodgman's   Estate,  .Matter  of,  3977, 

.". !  1 8  8 
Hoeflin  v.  Gedney,  20S6. 
Hoehn  v.  Lautz,  4051. 
Hoeninghaus  v.  Chaleycr,  S71. 
Hoes  v.  Edison  General  Electric  Co., 
i  I!'.  3SS3. 

v.  Halsey,  291. 

v.  Nagele,  913. 

v.  New  York,   etc.,   Ry.   Co.,    131. 
Hoey    v.    Metropolitan    St.    Ry.    Co., 
2297. 

v.  National      Shoe      &      Leather 
Bank,  865. 
Hoffaring  v.  Grove,  2848. 
Hoffenberth  v.  Muller,   270,  3723. 
Hofferberth  v.  Myers,  3898. 
Hoffman    v.    Aetna    Fire     Ins.     Co., 
2318,  2664. 

v.  Barry,  2754. 

V.Burke,    321S. 

v.  DeGraaf,  3011. 

v.  Hand,  145S. 

v.  Livingston,  639. 

v.  Lowell,  1905. 

v.  Lux,  2937. 

v.  Manhattan  R.  Co.,  3724. 

v.  New  York  Cent  &  H.  R.  R. 
Co.,  2247,  2315,  2318,  2319, 
2321. 

v.  New  York.  L.  E.  &  W.  R.  Co., 
945,   10S4,   29S3. 

v.  Ridley,   1908,   2119. 

v.  Rowley,  281. 

v.  Schwartz,  2760. 

v.  Skinner.  2937. 

v.  Smith,  683. 

v.  Sparling,  1947,  1963,  2559, 
3632,  3634. 

v.  Steinau,  683. 

v.  Susemihl,  947. 

v.  Van  Norstrand,  279. 

v.  Wight,  1068. 
Hoffman  House  v.  Foote,   2211. 

v.  Hoffman     House    Cafe,     2149, 
2563,  2566. 
Hoffnung  v.  Grove,  2848. 
Hofheimer  v.    Campbell,    905. 
Hofman  v.  Seixas,  1843,  1854. 
Hoftailing  v.  Teal,  89. 
Hogan  v.  Baker,  815. 

v.  Brophy,  3843. 

v.  Cregan,  2334,  2347. 

v.  Glueck,  2202. 

v.  Kavanaugh,  3966. 

v.  Laimbeer,  2601. 

v.  Mutual  Aid  &  Ace.  Ass'n,  2274. 

v.  O'Brien,  2333. 

v.  Wolf,  488. 
Hogg  v.  Mack,  351,   352,  353. 
Hoghtaling  v.  Osborn,  105. 
Hogle  v.  Guardian  Life  Ins.  Co.,  381. 

v.  Hogle,  735,  740. 
Holbrook  v.  Champlin,   3122. 

v.  Henderson,  1311. 

v.  Homer,  1288. 

v.  New  Jersev   Zinc   Co.,    3418. 

v.  Orgler,    3269,    3347. 

v.  Utica  &  S.  R.  Co.,   2337. 
Holcomb  v.  Rice,  1614. 

v.  Town   of  Champion,  2322. 


Holden,    Matter    of,    16,    2901,    3001, 

:;imi;,. 
Holden    v.    New    York    &    E.    Bank, 

2928. 
Holland  Coffee  Co.  v.  Johnson,  1322. 
Holland    Trust    Co.    v.    Consolidated 
Gas    &    Electric    Light    Co., 
1629,  1630. 

v.  Hogan,  3224. 
Hollenback  v.  Knapp,  4038. 
Hollenbeck  v.  Clow,  845,  949,  1067. 

v.  Donnell,  1622,  1624. 
Hollenborg  v.  Greene,  4122. 
Hollender  v.  Hall,  731,  1309. 
Holliday  v.  Parker,  2066. 
Hollingshead   v.   Woodward,    2935. 
Hollingsworth  v.  Napier,   2730,  2733. 

v.  Spectator  Co.,  995. 
Hollins    v.    St.    Louis    &   C.    Ry.    Co., 

267. 
Hollister  v.   Livingston,    1024. 

v.  McNeill,  3747. 

v.  Mott,  3869. 

v.  Spafford,  3314. 
Holloway  v.    Stephens,   1093,   1643. 
Holly  v.   Gibbons,   4070,   4078. 

v.  Graf,  1053. 
Holly  Mfg.  Co.  v.  Venner,   334,   1S57. 
Holm  v.  Appelby,  1023. 

v.  Empire  Hardware  Co.,  3S60. 
Holman  v.  Goslin,  716. 

v.  Holman,   3127,   3159,   3161. 
Holmes,  Matter  of,  3075-3077. 
Holmes  v.  Abbott,  69. 

v.  Bennett,  2575. 

v.  Broughton,  831. 

v.  Bush,  2803,  2877. 

v.  Cornell,  1853. 

v.  Davenport,  1562,  1563. 

v.  Davis,  64. 

v.  Evans,  2629,  2732. 

v.  Hengen,  4073. 

v.  Holmes,  2008. 

v.  Jones,  2305,  3905. 

v.  McDowell.  1635. 

v.  Moffat,  2276. 

v.  Northern    Pac.    Ry.    Co.,    1002, 
1004,  4115. 

v.  Nuncaster,  3107. 

v.  O'Regan,  334,  3337. 

v.  Remsen,  1480. 

v.  Richmond,  3131. 

v.  Rogers,    642,    2877,    3059,    3065, 
3185,  3887. 

v.  Stietz,  3316. 

v.  Williams,  3094. 
Holmes,  Booth   &  Hayden  v.   Stietz, 

1972. 
Holmes'   Estate,  Matter  of,  39S3. 
Holmes  &  G.  Mfg.  Co.  v.  Morse,  3048. 
Helsman     v.     St.     John,     2064,     2068, 

2080,  20S5. 
Holstein  v.  Rice,  17. 
Holt  v.   Streotor,   958,  1286. 
Holthausen  v.  Kells,  55. 
Holton  v.  Robinson,  3042,  3341,  3342. 
Holtz    v.    Schmidt,    1842,    1969,    2708, 

2709. 
Holy    Trinity   Church    v.    Church    of 

St.   Stephen,  3840. 
Holvoke  v.  Adams,  1052,   1054. 
Holzmann  v.  Monell,   2300. 
Homan  v.  Byrne,   949,  1066. 


TABLE  OF  CASES. 


4245 


[references  are  to  pages.] 


Homans  v.  Tyng,  2811. 

Home  Bank  v.  J.  B.  Brewster  &  Co., 

3388,  3124,  3126,  3430. 
Home  Ins.  Co.  v.  Head,  780. 
Home  Provident  Safety  Fund  Ass'n, 

Matter  of,  1651. 
Homer  v.  Martin,  1761. 
Hommedieu  v.   Stowell,   3090. 
Hommert  v.  Gleason,  224,  2775. 
Hone,  Matter  of,  3377. 
Hone  v.  De  Peyster,  2950,  2953. 
Honegger     v.     Wettstein,     432,     433, 

1647,   3656,  3718. 
Honer  v.   Smith,   1340,  1345. 
Honeywell   v.   Burns,    2117. 

v.  Shaffer,  1663,   1674. 
Hong    Kong    &    Shanghai    Banking 
Corp.    v.    Campbell,    1500. 

v.  Seely,  2574. 
Honigbaum   v.    Jackson,    4071,    4072. 
Honsing-er     v.     Union     Carriage     & 

Gear  Co.,  4084. 
Honstine  v.  O'Donnell,   2239. 
Hood,  Matter  of,  50,  3964. 
Hcod  v.  Hay  ward,  4?  6. 

v.  Hood,  426,  3G6S. 
Hood's  Estate,  Matter  of,  3987. 
Hoog-land  v.  Hudson,  392. 
Hooker  v.  City  of  Rochester,  2164. 

v.  Eag-le     Bank     of     Rochester, 
1767. 

v.  Matthews,  1845. 

v.  Rog-ers,  2027,  2028,   2029,  2033. 

v.  Sandford,  1932. 
Hooper  v.  Beecher,   3652,   3S37,   3845. 
Hoormann  v.  Climax  Cycle  Co.,  1437, 

1439. 
Hoover    v.    Rochester    Printing    Co., 

610. 
Hopcraft  v.  Lachman,  2337. 
Hope  v.   Acker,   1593,   J  606,   2122. 
Hope  Mut.  Ins.  Co.  v.  Perkins,  485. 
Hopedale  Elec.  Co.  v.  Electric  Stor- 
age Co.,    3898. 
Hopf   v.   United    States   Baking-   Co., 

1027. 
Hopfensack    v.    Hopfensack,    1655. 
Hopkins,  Matter  of,  221S. 
Hopkins  v.   Clark,    2295,    2595. 

v.  Everett,    948. 

v.  Frey,   2051. 

v.  Haywood,    356. 

v.  Hopkins,  1065,  2067. 

v.  Lane,   927. 

v.  Lott,   2907. 

v.  Meyer,    4105,    4127. 

v.  Nelson,   2884. 

v.  Snow,    1500. 

v.  Ward,   910. 
Hopkin's  Will,  Matter  of,  3922,  3923, 

3986,  4158. 
Hopper,  Matter  of,   326,   329. 
Hopper  v.   Brown,   47  1. 

v.  Ersler,  305,   1072. 

v.  Hopper,    133. 

v.  Weber,    4095. 
Hoppock  v.   Conklin,  3230. 

v.  Stone,   2711. 
Hopson,  Matter  of,   145. 
Horgan   v.    McKenzie,    3011. 
Horn  v.  Brennan,   2173,   2876. 

v.  New    Jersey    Steamboat    Co., 
2241. 


Horn  v.  Pullman,  3990. 
Hornbv  v.  Cramer,  2007,  2008. 
Home   v.    City   of    Buffalo,    348,    350, 

354. 
Hornellsville  Electric  R.  Co.  v.  New 

York,  L.  E.  &  W.  R.  Co.,  15. 
Horner  v.  Lyman,   3775. 
Hornfag-er    v.    Hornfag-er,    583,    625, 

1051,  2943. 
Horning-  v.   Smith,   4035. 
Hornthal    v.    Finelite,    2876. 
Horowitz  v.  Brodowsky,   982. 

v.  Hamburg-- American       Packet 
Co.     2251. 
Horr  v.   Seaton,  3646,   3999,   4002. 
Horslacher  v.   Horslacher,    335. 
Horst  v.  D.  G.  Yuengling  Brew.  Co., 

1805. 
Horton  v.  Barnes,  1801. 

v.  Borthwick,    3086. 

v.  Davis,  3245. 

v.  Equitable    Life   Assur.    Co.    of 
U.  S.,   61. 

v.  Hendershot,    2688. 

v.  Horton,    954,   2700,    2701. 

v.  La   Due,    728. 

v.  Shepherd,   1887. 
Hosley  v.  Black,   2230. 

v.  Colerick,    2972. 
Hosman  v.   Kinneally,   4154. 
Hosmer  v.    Darrah,   4072. 

v.  Gans,    3247. 
Hossack  v.  Heyerdahl,   2559. 
Hotaling  v.  McKenzie,   1873. 

v.  Schermerhorn,   2112,   2114. 
Hotchkins  v.  Hodge,  2347,   2725. 

v.  McVicker,    3107. 

v.  Mosher,    2619. 
Hotchkiss,   Matter   of,   559. 
Hotchkiss  v.  Auburn  &  R.  R.  Co.,  64. 

v.  Crocker,    919. 

v.  Elting,   996. 

v.  Germania  Fire  Ins.  Co.,   2258. 

v.  Hotchkiss,    1584. 

v.  Mosher,    1966. 

v.  Piatt,   1609,  1613,   1615,  3660. 
Hotopp  v.    Huber,    1091. 
Houck  v.  Lasher,  344,   1932. 
Hough  v.  Canfield,  1677. 

v.  Folmsbee,    1281,    1283,    1324. 

v.  Kohlin,   3280,    3284. 
Houghtaling  v.  Lloyd,   914. 
Houghton   v.   Skinner,   1053. 

v.  Townsend,    961. 
House  v.  Agate,  455. 

v.  Cooper,  74. 

v.  Lockwood,   2762,   3968. 
Houseman   v.    Rosenfield,    2119. 
Hovenden  v.  Annesley,   439. 
Hover  v.  Heath,  2391,  2392. 
Hovey  v.  Bromley,  82. 

v.  Chisholm,    37. 

v.  Elliott,    476. 

v.  McCrea,  1567,  1568. 

v.  Rubber    Tip    Pencil    Co.,    141, 
303,    304,    1611,    1612,    1615. 

v.  Starr,   3202. 
How  v.  Frear,   3199,   3203. 
Howard  v.  Curran,  916. 

v.  Farley,  2000. 

v.  Freeman,   2027,   3897. 

v.  Haves,    2010. 

v.  Holbrook,    2011. 


4240 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


Howard  v.  Johnston.  1051. 

v.  Leonard,  3402.  3404. 

v.  McDonoug'h,    2237. 

v.  Michigan     Southern     R.     Co., 
1024. 

v.  Mobile    Co.    of   America,    1067. 

v.  Moot,  831. 

v.  Orient     Mut.     Ins.     Co.,     1741, 
1757,  1763. 

v.  Prudential   Ins.   Co.,   747. 

v.  Raymond,   963. 

v.  Riker.    299. 

v.  Rome    &    T.    Plank-Road    Co., 
3004. 

v.  Sheldon,    3066. 

v.  Taylor,  2076,   2078. 
Howard  Ins.   Co.  v.  Halsey,   256. 
Howard  Iron  Works  v.  Buffalo  Ele- 
vating- Co.,  180,   184,   186,  4056. 
Howard's    Estate,    Matter     of,     504, 

508. 
Howd  v.  Cole,  962. 
Howe,  Matter  of,  2797,  3051. 
Howe  v.  Cooke.  56. 

v.  Elwell,  1077,  3868. 

v.  Hasbrouck,  562. 

v.  Learey,  1782. 

V.  Lloyd,    2903,    2905,    3790. 

v.  Muir,   3022,   3023. 

v.  Noyes,   4172. 

v.  Peckham,  60,  68. 

v.  Rochester  Iron  Mfg.  Co.,  1562. 

v.  Schweinberg,    2328. 

v.  Searing,    340. 

V.Welch,    116,    447,    3314,    3337. 
Howe    Mach.    Co.    v.    Gifford.     1864, 
1866. 

v.  Pettibone,  766,  775,   2828. 
Howe's  Cave  Lime  &  Cement  Co.  v. 

Howe's  Cave  Ass'n,   1832. 
Howell,  Matter  of,  3079,  3082. 
Howell  v.  Adams,  493,  2289. 

v.  Bennett,  911. 

v.  Biddlecom,    2469. 

v.  Dimock,    514. 

v.  Praser,    847. 

v.  Grand  Trunk  R.  Co.,  3907. 

v.  Leavitt,    466,    511. 

v.  Miller,  1610. 

v.  New   York   Cent.    &   H.    R.    R. 
Co.,  2287,  3928. 

v.  Press  Pub.  Co.,  2209. 

v.  Ripley,   1629. 

v.  Taussig,    1351. 

v.  Van   Sicklen,    3005,    3969. 

v.  Veith,  2941. 

v.  Wright,   2298. 

v.  Wright  Dairy  Co  ,  3942. 
Howells  v.  Hettrick,   3902. 
Howey  v.  Lake  Shore  &  M.  S.  R.  Co;, 

3847. 
Howitt  v.  Merrill,   297. 
Howk  v.   Bishop,    2942. 
Howland  v.  Coffin,   3653. 

v.  Howland,    2772,    2810,    3595. 

v.  Lenox,    2982,    2983. 

v.  Ralph,  3189. 

v.  Taylor,  279. 

v.  Willets,   2238,    2350,   3121. 

v.Woodruff,   2672. 
Howlett   v.    New    York,    W.    S.,    etc., 

Ry.    Co.,    1573. 
Hoxie  v.  Allen,   2267. 

v.  Greene,   2206. 


Hoy  v.  Duncan,  1346,  1364. 

v.  Smith,   378. 
Hoyle  v.  McCrea,  3207,  3208,  3213. 
Hoyt  v.  Blain,  2905. 

v.  Carter,    1603. 

v.  Cline,   2253. 

v.  Preel,    1920. 

v.  Godfrey,  304,  1289,  1292. 

V.Hudson,    3118. 

v.  Mann,    3351. 

v.  Mead,    411. 

v.  See,  2041. 

v.  Sheldon,    1052,    1057. 

v.  Thompson,   117. 

v.  Tuthill,    471. 

v.  Van  Alstyne,  1420,  1422. 
Hubbard,   Matter  of,   159. 
Hubbard  v.  Briggs,   1869. 

v.  Chapman,     2652,     2660,      2663, 
2672. 

v.  Copcutt,  3686. 

v.  Eames,   433. 

v.  Gicquel,  248,   674,   1908. 

v.  Gorham,    1078. 

v.  Guild,    1632. 

v.  Housley,   3235. 

v.  National   Protection    Ins.    Co., 
363. 

v.  Nearpass,   1804. 

v.  Otis,  876. 
Hubbell  v.  Alden,  2596. 

v.  Dana,  816. 

v.  Fowler,  990. 

v.  Lerch,    75. 

v.  Livingston,    823. 

v.  Medbury,    490. 

v.  Rochester,  2911. 

v.  Sibley,  350,  458,  468. 

v.  Syracuse  Iron  Works,  3654. 
Huber  v.  Clark,  4175. 

v.  Lockwood,  2904. 

v.  Wilson,    1065. 
Hubert  v.   Williams,   1302. 
Hubner   v.   Metropolitan    St.    R.    Co., 

3863. 
Huda  v.  American  Glucose  Co.,  3624. 
Hudson  v.   Bishop,   445. 

v.  Erie   R.    Co.,    2964,    2965,    2967, 
2979,    2985,    2986. 

v.  Guttenberg,   3044. 

v.  Henry,   660. 

v.  Rowing,    768. 

v.  Plets,    3406,    3422. 

v.  Rome,  W.  &  O.  R.  Co.,  2286. 
Hudson    River    P.    T.    Co.    v.    United 

Traction  Co.,   4110. 
Hudson    River    Tel.    Co.    v.    City    of 
Johnstown,   1592. 

v.  Watervliet     Turnpike     &     R. 

Co.,  1559,  1568,   3015. 

Hudson   River  Water   Power   Co.   v. 

Glens  Palls  Gas  &  E.  L.  Co.,  4116. 

Hudson  River  West  Shore  R.  Co.  v. 

Kay,   273. 
Huebner  v.  Roosevelt,  497,  2704. 
Huelet  v.  Reyns,  1347. 
Huerzeler  v.  Central  Cross  Town  R. 

Co.,  2345. 
Huff  v.   Bennett,  2238. 

v.  Jewett,  2919. 

v.  Knapp,  203. 
Hughes  v.  Chicago,  M.  &  St.  P.  Ry. 
Co.,  178,  841,  1066. 

v.  Cuming,    954,    2952. 


TABLE  OP  CASES. 


4247 


[REFERENCES   ARE   TO   PAGES.] 


Hughes  v.   Ferguson,  2323. 

v.  Griffith,   2594. 

v.  Harlam,   927. 

v.  Heath,   1041. 

v.  McKenzie,    3374. 

v.  Mercantile  Mut.  Ins.  Co.,  391, 
3630. 

v.  Patton,  696. 

v.  "Vermont  Copper  Min.  Co.,  44. 

v.  Wilcox,   1084. 

v.  Wood,   887,   2816. 
Hughitt  v.  Hayes,  970. 
Huguet  v.   Hallet,    1364. 
Hulbert  v.    Clark,    444,    449,    452. 

v.  Hope  Mut.  Ins.  Co.,  135. 

v.  McKay,   2021. 

v.  Nichol,   528. 

v.  Young,   93,    923. 
Hulbert  Bros.  &  Co.,  Matter  of,  3615. 
Hulbert  Bros.  &  Co.  v.  Hohman,  797. 
Hulburt    v.    Newell,    89,    1885. 
Hulbut  v.   Fuller,  3070. 
Hulce  v.    Sherman,   2633. 

v.  Thompson,   70,    1567,   1575. 
Hulett  v.   Whipple,   2807. 
Hull  v.  Allen,   2565. 

v.  Ball,  891,  901,  1093. 

v.  Canandaigua     Electric    Light 
&  R.   Co.,  721,   2816. 

v.  Carnley,   3113. 

v.Hart,   596. 

v.Hull,   1934. 

v.  L'Eplatinier,    326. 

v.  Littauer,   2287. 

v.  Peters,  2010,  2012. 

v.  Smith,   1071. 

v.  Vreeland,   361. 
Huller  v.   Wynne,    2271. 
Hulsaver    v.   Wiles,    236,    3279,    3291, 

3313,    3341. 
Hulse  v.  Nicoll,  2339. 
Hultslander   v.    Thompson,    514,   515. 
Humbert  v.  Abeel,  958. 

v.  Trinity  Church,  494. 
Hume  v.   Fleet,    3161. 
Humiston  v.  Ballard,   2903. 
Hummel  v.  Stern,    2337. 
Humphrey  v.   Brown,   3203. 

v.  Cande,  538. 

v.  Cottleyou,    859. 

v.  dimming,  1308,  3214. 

v.  Hayes,  1315. 

v.  Rising,   2795. 
Hun  v.  Cary,  2141. 

v.  Salter,  3022. 
Hungerford  v.   Cartwright,    3399. 
Hunn  v.  Norton,   2927. 
Hunt,  Matter  of,  3991. 
Hunt  v.   Bennett,  826,  2317. 

v.  Bloomer,    2667. 

v.  Brennan,    818. 

v.  City  of  Oswego,  2940. 

v.  Church,  3834. 

v.  Connor,  2952. 

v.  Dexter    Sulphite    Pulp    &    Pa- 
per Co.,  4051. 

v.  Dutcher,    852. 

v.Enoch,    3323. 

v.  Genet,   207. 

v.  Grant,   2814. 

v.  Hunt,  122. 

v.  Johnston,   3854. 

v.  Lawless,   2601. 

v.  Mails,  2867. 


Hunt  v.  Maybee,  2292. 

v.  Meacham,   893. 

v.  Middlebrook,    2904,    2996. 

v.  Provident     Sav.     Life    Assur. 
Soc,   4070,   4123. 

v.  Robinson,   1435. 

v.  Sullivan,   1915,    3972. 

v.  Wallis,  625,   630,  3946. 

v.  Webber,  2666. 

v.  Westervelt,   4025. 
Hunter  v.  Allen,  4069. 

v.  Booth,   4110. 

v.  Burtis,  249. 

v.  Fiss,   4111. 

v.  Graves,   4011. 

v.  Hatfield,   2038. 

v.  Hunter,    870,    3352. 

v.  Le  Conte,  540,  2007. 

v.  Lester,  563. 

V.Manhattan  Ry.  Co.,  2390,  2613. 

v.  New    York,    O.    &    W.    R.    Co., 
831. 

v.  Powell,  77. 

v.  Schuyler,  1922. 

v.  Third  Ave.   R.   Co.,   2338. 

v.  Wetsell,  2262. 
Hunter    Smokeless    Powder    Co.    v. 

Hunter,   3900. 
Hunter's  Point  &  S.  S.  R.  Co.,  Mat- 
ter of,  2123. 
Huntington  v.  Ballou,  528. 

v.  Conkey,   2204. 

v.  Cortland  Home  Tel.  Co.,  1574. 

v.  Forkson,    2116. 

v.  Moore,    3020. 
Hupfel   v.   Schoemig,    637. 
Hurd,  Matter  of,  1384. 
Hurd  v.  Beeman,   4009. 

v.  Davis,  661,  663. 

v.  Farmers'    Loan    &    Trust    Co., 
1413,  2997,  2998. 

v.  Magee,   3156,   3163. 

v.  Pendrigh,  1744. 

v.  Swan,   1979,   1980,   1982. 
Hurl  v    New  York  Cent.  &  H.  R.  R. 

Co.,    2346. 
Hurlburt  v.   Hurlburt,   2317. 
Hurlbut  v.  Coman,  2824. 

v.  Interior     Conduit     &     Insula- 
tion   Co.,    1040,    1041. 

v.  Seeley,    1397. 
Hurlehy  v.  Martine,   482. 
Hurley  v.  Brown,  3963. 

v.  New    York    &    B.    Brew.    Co., 
3604. 

v.  Second   Bldg.    Ass'n,    46,    1047. 
Hurlimann  v.  Seckendorf,  827,  2205, 

2206. 
Hurth  v.  Bower.  158. 
Huson  v.  Egan,  2713. 
Hussey   v.   Coger,    3636. 
Husson,  Matter  of,   285. 
Husson  v.  Fox,   1846. 
Husted    v.    Dakin,    3129,    3141,    3143 
3144. 

v.Thomson,   2089,  3009,  3902 

v.  Van  Ness,   2925,   3873. 
Hustis  v.  Aldridge,  2586. 
Hutchings  v.  Miner,  381. 
Hutchins  v.  Hutchins,   2325. 
Hutchinson  v.  Bien,  4105. 

v.  Brand,  3206,   3210. 

v.  Chamberlin,    1419,    1421,    1422. 

v.  Simpson,    1791. 


4248 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Hutchinson  v.  Young,  356,  4047,  4050. 
Hutchison  v.   Root,   3848. 
Hutson     v.     Morrisania     Steamboat 
Co.,   2S51. 

v.  Weld.    3:'SL\    32S5.    3343. 
Huttemeier  v.  Albro,  3917. 
Hutton  v.  Metropolitan  El.   Ry.  Co., 
2161. 

v.  Murphy,   814. 

v.  Smith,    490,    3876. 
Hyatt  v.  Dusenbury,  676,  3347,  3356, 
3373,   3409,   3650. 

v.  Ingalls,   142,   3664. 

v.  Mark,   2609. 

v.  Roach,   2559. 

v.  Seeley,  17,  2049. 

v.  Swivel,  557,  767. 

v.  Wagenright,    767,    773,    779. 
Hyde,  Matter  of,  3989. 
Hyde  v.   Patterson,   675. 

v.  Salg,   898. 

v.  Stone,  2289. 
Hyde  &  Sons  v.  Lesser,  4070. 
Hyer  v.  Ayres,   1276. 
Hyland  v.   Loomis,   195,   4033. 

v.  New    York   Cent.    &   H.    R.    R. 
Co.,   511. 
Hvman  v.  Kapp,  1399. 
Hvmes  v.   Van   Cleef,   2685,    3717. 
Hvnds  v.   Shults,   2231. 
Hynes,  Matter  of,   249,  297. 
Hvnes    v.    Farmers'    Loan    &    Trust 
Co.,  69,   397,   403,  999. 

v.  McCreery,   3847. 

v.  McDermott,    1646,    1655,    1731, 
1791,  2219,  2264,  2336. 


Iaquinto  v.   Bauer,    3841,    4159,    4166. 

Ibbotson  v.   King,   2718. 

Idley  v.   Bowen,   3653. 

Illinois  "Watch  Co.  v.  Payne,  2891. 

Illius  v.  New  York   &  N.  H.  R.   Co., 

3632,    3637. 
Illston  v.    Evans,   2282. 
Imgard  v.  Duffy,  1957. 
Imhoff   v.    Wuritz,    91,    2960. 
Immig  v.  Hoesloop,  1782. 
Imperial  Shale  Brick  Co.  v.  Jewett, 

2153. 
Importers'   &  Traders'  Nat.  Bank  v. 

Quackenbush,    3260,    3272. 
Inderlied  v.  Whaley,   2979,   3029. 
India  Rubber  Co.  v.  Katz,  1410,  1414. 
Indiana  v.  Woram,   2123. 
Industrial   &  General   Trust  v.   Tod, 

2767,  4123,   4154,  4155. 
Ingal  v.   Stoddard,   1937. 
Ingalls  v.  Lord,  3108. 

v.  Merchants'    Nat.    Bank,    1580, 
2818,   2869. 
Ingersoll  v.   Bostwick,   702. 

v.  Cunningham,  3870. 

v.  Dixon,   1078. 

v.  Mangam,   740,   85,   2039. 

v.  Rhoades,  524. 

v.  Town   of   Lansing,   2351,    2352, 
2357. 
Inglehart,   Petition   of,    3367. 
Ingraham,   Matter   of,    3925. 
Ingraham  v.   Gilbert,  2618,   2629. 
Ingram  v.  Robbins,   2885,   2886. 


Ingrosso   v.    Baltimore   &   O.    R.   Co., 

4149. 
Inman  v.  Griswold,  611. 
Innes  v.  Lansing,   2113. 

v.  Pureell,   631,   3636,    3718. 
Inslee  v.  Hampton,  986,  2755. 
Insurance    Press    v.    Montauk    Fire 

Detecting  Wire  Co.,  1777,  1800. 
International     Life     Assur.     Co.     v. 

Sweetland,  363. 
International   Paper   Co.    v.    Hudson 
River     Water     Power     Co..     4070, 
4103. 
International  Soc.  v.  Dennis,  4106. 
Ireland  v.   Harlam,    2977. 

v.  Nichols,  1630,   1657,  3780,  3781. 

v.  Smith,  3422. 
Irlbacker  v.  Roth,   955. 
Iron  Clad  Mfg.  Co.  v.  Smith,  4010. 
Iron   Nat.   Bank  v.   Dolge,   352,    1952. 
Irroy   v.   Nathan,   537. 
Irvin  v.  Wood,   397. 
Irvin's    Estate,    Matter   of,    492. 
Irvine  v.  Cook,  2276. 

v.  F.    H.    Palmer   Mfg.    Co.,    3832. 

v.  Spring,    241. 
Irving  v.   Ehrich,   2366. 

v.  Irving,    2563. 
Irving  Nat.   Bank  v.  Corbett,   994, 
1000,  1006. 

v.  Kernan,   611. 

v.  Moynihan,    4057. 
Irving  Sav.  Inst.   v.   Robinson,   3232. 
Irwin   v.   Chambers,    3266. 

v.  Curie,   263,   4062. 

v.  Deyo,   2980. 

v.  Judd,    678,    686,    1328. 

v.  Metropolitan  St.  Ry.   Co.,   199, 
2328. 

v.  Muir,   3711,   3999. 
Isaacs   v.   Beth  Hamedash   Soc,    105. 

v.  Calder,   3712. 

v.  Cohen,    1552,    1903,    2942,    2992. 

v.  Gorham,   1292. 

v.  Mintz,  919. 

v.  New     York     Plaster     Works, 
3045,  3962. 
Isear  v.  Daynes,  1691,  1693,  1921. 

v.  McMahon,   411. 
Iselin  v.  Graydon,   2995. 

v.  Henlein,   3399. 

v.  Rowlands,   384. 

v.  Smith,   2108,   2122. 
Isham  v.  Davidson,  976,  2291. 

v.Davison,   2076,   2091,   2111. 

v.  New     York    Ass'n     for     Poor, 
3655. 

v.  Phelps,    474. 

v.  "Williamson,   1069. 
Isnard  v.  Cazeaux,  583,  1876,  1877. 
Isola  v.  Weber,  3923,  3965. 
Israel  v.   Israel,    1814. 

v.  Manhattan   R.  Co.,   3871,   3885. 

v.  Metropolitan   El.  R.  Co.,  2074, 
2077. 

v.  Metropolitan  R.  Co.,  3015. 

v.  Voight,   2125,   2129. 
Ithaca    Agricultural    Works    v.    Eg- 

gleston,   17,  197,   3646,   3935. 
Ithaca  Fire  Dep't  v.  Beecher,  355. 
Ives,  Ex  parte,  3170. 
Ives  v.  Ellis,  1455,  2277. 

v.  Holden,   1524. 


TABLE  OF  CASES. 


4249 


[references  are  to  pages.] 


Ives  y.  Ives,  108,  271. 

v.  Jacobs,    2740. 

v.  Lockwood,    1500. 

v.  Metropolitan     Life     Ins.     Co., 
743. 

v.  Miller,  2929. 

v.  Ranger,    2055. 

v.  Shaw,    865. 
Ivy    Courts    Realty    Co.    v.    Morton, 
1003. 


J. 


Jack  v.  Cashin,   3151. 

v.  Martin,  832. 

v.  Robie,  2951,  2953. 
Jackett  v.  Judd,  2904. 
Jacks  V.  Darrin,   4035. 
Jackson     v.     Anderson,     3065,     3093, 
3127,   3131. 

v.  Andrews,  2360. 

v.  Austin,  2S07. 

v.  Bartlett,  44,  3150,   3151. 

v.  Belknap,    707. 

v.  Benedict,    3207. 

v.  Brown,    2025. 

v.  Brownson,  586. 

v.  Brunor,   2041,   2849,   2875. 

v.  Budd,   3164. 

v.  Bunnell,    1557,    1561,    1570. 

v.  Burtis,  1969. 

v.  Bush,   3151,  3157. 

v.  Bushnell,    1898. 

V.  Cadwell,  3065. 

v.  Carpenter,  1914. 

v.  Catlin,   3158. 

v.  Chapman,   82. 

v.  City  of  New  York,   1001. 

v.  Citv   of   Rochester,    3953. 

v.  Collins,    313,    3129,    3131. 

v.  Crosby.  2704,  2705,  2707. 

v.  Daggett,    378. 

v.  Davis,   3151,   3157. 

v.  Delancy,    3132,    3141,   3159. 

v.  Dickenson,    3160. 

v.  Edwards,  1913,   1914,   3235. 

v.  Fassitt,   3710. 

v.  Ferguson,   607. 

V.  Frost,   462. 

v.  Gardner,   657. 

v.  Garnsey,   2943. 

v.  Gauger,   2220. 

v.  Giles,    613,    664. 

v.  Graham,  3151. 

v.  Hasbrouck,    3151. 

v.  Hawks,   2358. 

v.  Hoagland,  2982. 

V.  Hobby,    1728,    1761. 

v.  Howd,  664. 

v.  Hull,   3150. 

v.  Jackson,    1924,    4138,    4139. 

v.  Johnson,   465,   502. 

v.  Jones,   ::  1  r. s . 

v.  Keller,    2943. 

v.  Kinney,    2708. 

v.  Knickerbocker  Athletic  Club, 
1860. 

v.  Larrowa  v,    2034. 

v.  Law,  3164. 

v.  Lawyers'     Surety     Co.,     3733, 
3772. 

v.  Malin,   2359. 

v.  Mann,    1981. 

v.  Mather,   2988. 


Jackson  v.  Miller,  1921,  3151. 

v.  Murray,    2289,    3306. 

v.  Newton,   3142,   3143. 

v.  New     York    Central     R.     Co., 
2241. 

v.  Odell,    2327. 

v.  Page,    3093,   3159. 

v.  Pell,  2034. 

v.  Piatt,   2658. 

v.Pratt,    3158. 

v.  Ramsav,  3160. 

v.  Rice,    1727. 

v.  Roberts'   Ex'rs,  3161. 

v.  Roe,    2711. 

v.  Root,    2988. 

v.  Roosevelt,   3132,   3159. 

v.  Sandman,   2192. 

v.  Schauber,   1922. 

v.  Schoonmaker,    463,    465. 

v.  Scott,   3138. 

v.  Sellick,  465. 

v.  Shaffer,  3127. 

v.  Shearman,    1967. 

v.  Sheldon,    3187. 

v.  Shepherd,  1756. 

v.  Smidt,   610. 

v.  Stephens,   2688. 

v.  Sternbergh,   3088,  3186. 

v.  Stewart,    267. 

v.  Stiker,    3160. 

v.  Stiles,  546. 

v.  Streeter,   3158. 

v.  Tallmadge,    2227. 

v.  Thurston,  2743. 

v.  Tuttle,   3129. 

v.  Van  Loon,    1749. 

v.  Virgil,    539. 

v.  Wakeman,   2025. 

v.  Walker,    2799,    3093,    3183. 

v.  Warford,  464,  2713. 

v.  Watson,    1749. 

v.  Wheat.    502. 

v.  Willard,    3139. 

v.  Woodworth,    546. 

v.  Woolsev,    2052. 

v.  Yale,   656. 

v.  Young,    3147. 
Jacob  v.    Thompson,   2154. 

v.  Watkins,    2363,    4031. 
Jacob  Hoffman   Brew.    Co.   v.   Volpe, 

2969. 
Jar-obie  v.  Sweet,   2274. 
Jacobs  v.  Fountain,  2590. 

v.  Friedman,    870,    871,   876. 

v.  Hogan,   1440. 

v.  Hooker,    661. 

v.  Marshall,    915. 

v.  Mexican    Sugar    Refining   Co., 
4054,  4140,   4150. 

v.  Miller,  1591,   1606. 

v.  Morange,    3687. 

v.  New    York    Cent.    &   H.    R.    R. 
Co.,    4048,   4070,    4129. 

v.  Sire,   2342. 

v.  Water     Overflow     Preventive 
Co.,   868. 
Jacobson,  Matter  of,  420. 
Jacobson  v.  Brooklyn  El.  R.  Co.,  76, 
1091,    1710,   2153. 

v.  Doty    Plaster    Mfg.    Co.,    3270. 
Jacot    v.    Marks,     2125,     2130,    2131, 

2132. 
Jacquelin     v.     Manhattan     Ry.     Co., 
1601,  2568. 


4250 


TABLE  OF  CASES. 


[references  are  to  pages.] 


Jacquelin  v.  Morning  Journal  Ass'n, 

856,  2210. 
Jacques  v.  Greenwood,  2849. 
Jacquin  v.   Jacquin,   3042,   3062. 
Jaecker  v.   Muller,    207. 
Jaeger  v.   City   of  N.   Y.,   4109,    4115. 

v.  Koenig,  2202,   2679,   3708. 
Jaffray  v.  Brown,  177. 

v.  Goldstone,  2122,  3006,  3968. 
v.  Hunter,  1919. 
v.  Nast,   1432,   1520. 
v.  Saussman,    2889. 
Jagau  v.   Goetz,   511. 
Jaggar   v.   Cunningham,    2817. 
Jagger  v.   Littlefield,    1058. 
Jaillard   v.   Tomes,    894. 
Jakobi  v.  Gorman,  1552. 
James  v.  Beesly,  3084. 
v.  Coxe,    1840. 
v.  Delevan,   2120. 
v.  Gurley,    31S6. 
V.  Horn,   2635. 

v.James  Cement  Co.,   1652. 
v.  Kirkpatrick,    1048,    2816. 
v.  Patten,  114. 
v.  Richardson,  1436,  1438. 
v.  Shea,   2129,    2132,    3715. 
v.  Signell,   1393,  1442. 
v.  Work.  2663. 
James  Goold  Co.  v.  Maheady,  2812. 
James    Reilly's    Sons    Co.    v.    Aaron, 

2009. 
Jamieson  v.  Jamieson,  1280. 
Jamison  v.  Beecher,  541,  1434. 
Janes  v.   Saunders,    1011. 
Janeway  v.   Hoft,   4005. 
Janos  v.  Samstag,  3942. 
Jansen,   Matter  of,   3083,   3084. 
Jansen    v.    Fischer,    4116. 
v.  Tappen,    2573,   2574. 
Janssen   v.    Whitlock,    2109. 
Jarvis  v.    Brennan,   1720,    1721. 
v.  Felch,    2080,   2127. 
v.  Furman,    3887. 
v.  Hathaway,   2695. 
v.  Jarvis,  2381,   2618. 
v.  Metropolitan    Street    Ry.    Co., 

2275. 
v.  Shaw,  3922. 
Jay   v.   DeGroot,    169,    572    639,    1638, 

2816. 
Jav's  Case,  1652. 
Jaycox  v.   Cameron,   2679. 
Jeannot  v.  Foran,  2013. 
Jeffards  v.  Broklyn  Heights  R.  Co., 

279. 
Jeffers  v.   Bantley,    2666. 
Jefferson  Bank  v.  Gossett,   40b/. 
Jefferson    County    Bank    v.     Prime, 

Jefferson      County     Nat.      Bank     v. 

Dewey,  4079. 
Jeffras  v.  McKillop,   833,   3632. 
Jeffres  v.  Cochrane    3418. 
Jemison  v.  Citizens'  Sav.  Bank,  3634. 
jlnkins  v.  Baker,  1917,  1922,  4150. 

v.  Bisbee,  427. 

v.  City  of  Hudson,  2200. 

v.  Fahey,  780. 

v.  Hall,    1031. 

v.  Jenkins,  1626. 

v.  McGill,  310. 

v  Putnam.  1778,  1810. 

v.  Smith,  1310. 


Jenkins  v.  Warren,   1038,   1041. 

v.  Wild,   647. 
Jenkinson  v.  Harris,  2958. 
Jenks  v.  Hallet,   2361. 
v.  Thompson,  4160. 
v.  Van  Brunt,   2766. 
Jenner  v.  Joliffe,  1477,  3118. 
Jennie    Clarkson    Home    v.    Chesa- 
peake &  O.  R.   Co.,   2144. 
Jennings  v.   Asten,   2867. 
v.  Fay,    2116,    2974. 
v.  Jennings,   2046. 
V.  Kosmak,    2306,    2329. 
v.  Lancaster,    3278. 
v.  Miller,  4009. 
v.  Newman,   308. 
Jensen  v.  Hamburg- American  Packet 

Co     2345 
Jepson  v.  Postal  Tel.  Cable  Co..  743. 
Jermain   v.   Lake   Shore   &   M.    S.   ±i~ 

Co.,    2988. 
Jeroliman  v.  Cohen,  59,  1047. 
Jerome  v.   Boeram,   2943. 

v.  Flagg,   768. 
Jerome  Co.  v.  Loeb,   1569. 
Jerrells  v.  Perkins.   1805. 
Jerry  v.  Blair,   3650,  3996,   4002. 
Jesper  v.  Press  Club  Co.,  3864. 
Jessop  v.  Miller,  83. 
Jessup  v.   Hulse,   3410. 
Jesup  v.  Carnegie,  117,  3734,  3744. 

v.Jones,    3277. 
Jetter,  Matter  of,   16,   2939. 
Jewelers'  Mercantile  Agency  v.  Jew- 
elers' Weekly  Pub.  Co.,  142, 
864,   2273. 
v.  Rothschild,  15. 
Jewett  v.   Albany  City  Bank,   630. 
v.Crane,     683,     689,     1507,     1511, 

3771. 
V.  Earle,   2007,   2008,  2011. 
v.  Pickersgill,    2126. 
v.  Schmidt,    4129,    4171. 
v.  Swann,    1577. 
Jex  v.    City  of  New  York,    471,    474, 
965. 
V.Jacob,   55,   1055,   2826. 
J.  F.  Pease  Furnace  Co.,  Matter  or, 

210. 
Joannes  v.  Fisk,  2863. 
Joannessen  v.   Munroe,   1029. 
Johenning  v.   Johenning,    772. 
John   v.  Buckley,   1791. 
John  Church  Co.  v.   Clarke,  985. 

v.  Parkinson,    4125. 
John  Douglas  Co.  v.  Moler,  1004. 
John    D.    Park    &    Son's    Co.    v.    Na- 
tional        Wholesale         Druggists' 
Ass'n,    828,   830,   833,   834,   1066. 
John  S.  Way  Mfg.  Co.   v.   Corn,   878, 

1845. 
John  T.  Noye  Mfg.  Co.  v.   Raymond, 
2026. 

v.  Whittmore,  1956. 
John    W.    Simmons    Co.    v.    Costello, 

924. 
Johnson  v.  Ackerson,  675. 

v.  Adams  Tobacco  Co.,  960. 

v.  Albany  &  S.  R.  Co.,  444. 

v.  Alexander,   2140. 

v.Anthony,  663.  „-,- 

v.  Atlantic     Ave.     R.    Co.,     1040, 

2559. 
v.  Austin,    4066. 


TABLE  OF  CASES. 


4251 


[references  are  to  pages.] 


Johnson  v.   Buckel,  1390,   1451,  1461. 

v.  Casey,    1595. 

v.  Chappell,    2966. 

v.  City  of  Albany,  3907,  4129. 

v.  Clark,  2873. 

v.  Cochrane,  1619,  1623,  1627. 

v.  Covert,    2013. 

v.  Dalton,  205. 

V.  Elwood,    1606,   2066. 

v.  Farrell,   3043. 

v.  Gibson,  964. 

v.  Gillette,    2007. 

v.  Golder,  59,   995,   1001. 

v.  Hardwood   Door    &   Trim  Co., 
1518. 

v.  Havnes,  290. 

v.  Jillitt,   2902. 

v.  Johnson,  78,  807. 

v.  Kingston     Board     of     Educa- 
tion, 1564. 

V.  Lord,    3904,    3943. 

v.  Lynch,   564.    1953,   2S74. 

v.  Mallory,  858. 

v.  Martin,   1635. 

v.  Meeker,  54. 

v.  Myer,   1369. 

v.  New  Home  Sewing  Mach.  Co., 
1724. 

v.  New    York,    O.    &   W.    R.    Co., 
187. 

v.  People,  2254. 

v.  Roach,  84. 

v.  Sager,   2001. 

v.  Shelter  Island  Grove  &  Camp 
Meeting  Ass'n,  3013. 

V.  Smith,   48. 

v.  Strong,  2799. 

v.  Thorn,   1083,  2292. 

v.  Tuttle,    3272,   3295. 

v.  White,   988. 

v.  Whitlock,   2653. 

V.Whitman,    1275,    1288. 

v.  Woodend,  4055. 
Johnson's    Estate,    Matter    of,    3603, 

3975. 
Johnston   v.  Bennett,   378. 

V.  Bush,   1727. 

v.  Catlin,  1919. 

v.  Donvan,    425. 

v.  Garside,  2119. 

V.  Green,   1681. 

v.  Lewis,  1863. 

v.  Manhattan  Ry.  Co.,  21. 

v.  Mutual  Reserve  Life  Ins.  Co., 
4055,   4088. 

v.  Robins,    656. 

v.  Stimmel,    143,    1863. 

v.  Winter,   720. 
Johnstown     Mining    Co.     v.     Morse, 

4053. 
Joline  v.   Connolly,   3307. 
Jones,  Matter  of,   3608. 
Jones  v.  Anderson,   3797,  3850. 

v.  Blun,    1638. 

v.  Brinsmade,    3833. 

v.  Butler,    2963,   2967. 

v.  Case,  2968. 

v.  City  of  New  York,   131. 

v.  Cook,    2937,    3038. 

v.  Daly,  2301. 

v.  Derby,   752. 

v.  Easton,    295,    3044. 

v.  Emery,   2910. 

v.  Felch,  407. 


Jones  v.  Fuchs,  4131. 

v.  Gray,  2992. 

v.  Hoyt,   1751. 

v.  Johnson,    105. 

v.  Jones,     734,     812,     2081,     20S2, 
2220,    2818,    2824,    2830,    4123. 

v.  Lawlin,    3272. 

V.Leopold,    4044,   4047,    4150. 

v.  Ludlum,    943. 

v.  Lustig,   2703. 

v.  McCarl,  3119. 

v.  Merchants'    Bank    of    Albany, 
445. 

v.  Merchants'   Nat.   Bank,    168. 

v.  Metropolitan  El.  R.  Co.,   2909. 

v.  Newton,    2809,    2813,    3049. 

v.  New   York   Cent.    &   H.    R.   R. 
Co.,   2232,  2272. 

v.  Niagara     Junction     Ry.      Co., 
2276. 

v.  Osgood,   2345. 

v.  Owen,   3996,   4019. 

v.  Palmer,  837. 

v.  Phelps,    3941. 

v.  Piatt.    1347. 

v.  Porter,   696,   3278. 

v.  Reed,    4021. 

v.  Reilly,  3877. 

v.  Rochester  Gas  &  Electric  Co., 
647. 

v.  Russell,   2173. 

v.  Schermerhorn,    143. 

v.  Seaman,   900,   1048. 

v.  Sherman,    3945,    3956. 

v.  Stewart,   2738. 

v.  United    States    Slate    Co.,    666, 
667,   789. 

v.  Van  Ranst,  3029. 

v.  Wakefield,  3022. 

v.  Williams.    611,    1332. 

v.  Wilson,   3065. 
Jordan  v.  Bowen,  2217. 

v.  Donnelly,   1606. 

v.  Garrison,  562. 

v.  Harrison,    1342. 

v.Jordan,    1768,    1815,    1816. 

v.  National      Shoe      &      Leather 
Bank,    970,   983,    992. 

v.  Posey,   3066,   3097. 

v.  Richardson,    1444. 

v.  Sherwood,    2944. 

v.  Underhill,    2568.    4046.    4047. 

v.  Volkenning,   1612,    3734. 
Jordan  &  S.  Plank  Road  Co.  v.  Mor- 

ley,  40,   825. 
Jorgenson  v.   Reformed  Low  Dutch 

Church,   482,   1012. 
Joseph  v.  Makley,   1889. 

v.  Raff,    1888,   1889. 
Joseph   Dixon    Crucible   Co.    v.    New 

York  City  Steel   Works,   3633. 
Joslin  v.  Cowe,  3872. 
Jospe  v.   Lighte,   2172,   2821. 
Josuez   v.   Murphy,   1357,   3705. 
Jourdan  v.  Healey,  2024. 
Joy  v.  White,  884. 
Joyce  v.  Cooper,  1874. 

v.  Spafard,    3282,    3303. 
Judah   v.   Lane,   1787. 
Judd  v.  Buskin,   2230. 

v.  Ensign,   2007. 

v.  Young,  429. 
Judges  of  Oneida  Common  Pleas  v. 
People,  2909. 


4252 


TABLE  OF  CASES. 


["  references  are  to  pages.] 


Judson    v.   Central  Vt.    R.   Co.,   3883, 

300S 

v.  Cook,  'l544,    3194. 

v.Gray,  3921. 

v.  Havely,  4019. 

v.  OVonnell.    196. 

v.  Village  of  Olean,  2900,  2977. 
Julian   v.   Woolsey,   713,   2824. 
Juliand  v.  Grant,  2646. 

v.  Watson,  3867. 
Julio   v.   Equitable  Life  Assur.   Soc, 
1058. 

v.  Ingalls,  1S48,  1853,  1914. 
Jung-  v.   Keuffel,  3835. 

v.  May,    1918. 
Junge  v.  Haug\  2320. 
Jurgens  v.  Tom  Suden,  1461,  1462. 
Jurgenson  v.   Hamilton,    3270. 
Justice  v.  Lang",   2320. 
Justice   Laughlin,    Opinion    of,    1800. 
Justum    v.    Bricklayers',    Plasterers' 
&  Stonemasons'  Union,  S65,  873. 


Kaempfer   V.    Gorman,    1750,    1751. 

Kafka  v.  Levensohn,   2291. 

Kager  v.  Brenneman,   965,  995,  3756, 

3759 
Kahle'v.   Muller,    1439,    1517,    1525. 
Kahn  v.  Coen,  2974. 

v.  Crawford,    521,    523. 

v.  Freytag,    1341. 

v.  New  York   El.   R.   Co.,   2275. 

v.  Schmidt,   2902,  2997. 

v.  Singer  Mfg.  Co.,   1876,   1878. 
Kahn  &  Co.  v.  Casper,  2870. 
Kahrs    v.    City    of   New    York,    4073, 

4079. 
Kain  v.  Delano,  2139,  2574. 

v.  Dickel,    1072,    1076. 

v.  Larkin,    826,    1002,    3324,    3409. 

v.  Smith,   1644. 
Kaiser  v.   Kaiser,   478. 

v.  Richardson,    1458,    1508. 
Kalbfleisch   v.   Kalbfieisch,   1645. 
Kalichman  v.  Nadler,  604. 
Kaliske  v.  "Weil,   2132. 
Kaliski  v.  Pelham  Park  R.  Co.,  2914. 
Earn    v.   Benjamin,    3663. 
Kamer  v.   Myleus,   1728. 
Kamermann    v.    Eisner    &    Mendel- 
sohn  Co.,   1898,    1900,    2672,    2674. 
Kamp  v.  Kamp,  607,  3395,  3585. 

v.  Van  Vranken,  2936. 
Kane  v.  Bloodgood,  443. 

v.  Clarke,  1808. 

v.  Demarest,   2876. 

v.  Metropolitan  El.  R.  Co.,   3959. 

v.  Rochester  Ry.   Co.,   2332. 

V.  Rose,    3061,    4062,    4063. 

V.  Scofield,    586. 

v.  Thearl,    2031. 
Kanna  v.  Kester,  2333. 
Kanouse  v.  Dormedv,   1511. 

v.  Martin,    157,    1047. 
Kanter  v.  Peyser,  133. 
Kantrowitz   v.    Kulla,    2881. 
Kaphon  v.   Tucker,   3868. 
Kapiloff  v.  Feist,   4164. 
Kaplan    v.    Metropolitan    St.    R.    Co., 
3906. 

v.  New    York    Biscuit    Co.,    797, 
3608,   3625. 


Earelson  v.  Sun  Fire  Office,  2336. 
Kasson  v.  Mills,  4009,  4023. 
Kastner  v.  Kastner,  1784. 
Katt    v.     Germania    Fire    Ins.     Co., 

2588,   2630. 
Katiciistroth  v.  Astor  Bank,  1630. 
Katz  v.  Atfield,  2705. 

v.  Diamond,    3594. 

v.  Kuhn,    2204,    2207,    2319,    3120, 
3731. 
Kaufman  v.  Canary,  2301. 

v.  People  Cold  Storage  &  Ware- 
house Co.,   2111,  2362. 

v.  Schoeffel,   2251,   3114. 

v.  Thrasher,    3316. 
Kaughran  v.   Kaughran,   994. 
Kaupe  v.  Bridge,  3429. 

v.  Isdell,  1846. 
Kautsky,  Matter  of,  2634-2638. 
Kautz  v.  Vandenburgh,  2000. 
Kavanagh  v.   Wilson,   22S7. 
Kavanaugh  v.  Commonwealth  Trust 
Co.,    4094,    4097,    4098,    4124, 
4125. 

v.  Mercantile   Trust   Co.,    4151. 
Kay  v.   Churchill,   830,   944. 

v.  Metropolitan  St.  Ry.  Co.,  2223, 
2248. 

v.  Whittaker,  980,  1079. 
Kayser  v.  Arnold,  141,  2927. 
Kearney  v.  Thompson,  420. 
Kearns  v.  Brooklyn  Heights  R.  Co., 

2336. 
Kearr  v.   Bartlett,  351,   1952. 
Keating  v.   Mott,   4164. 

v.  Stevenson,   1034. 
Keator  v.  Dalton,   1574,  3614,  4136. 

v.  Ulster   &   D.    Plank-Road  Co., 
2553,  2605. 
Keck  v.  Gross,  1331. 
Kee  v.  McSweeney,  869. 
Keeffe     v.     Third     National     Bank, 

4057. 
Keegan  v.  Third  Ave.  R.  Co.,  2264. 
Keeler  v.  Adams,  4014. 

v.  Barrett's,  etc.,  Dyeing  Estab- 
ment,    3944. 

v.  Belts,   1337. 

v.  Clark,  3198. 

v.  Dennis,  2171. 

v.  Dusenbury,   1844. 

v.  Keeler,  299,  988,   3035. 

v.  King,   1918. 
Keenan    v.    O'Brien,    582,    1733,    1785. 
Keene   v.    Newark  Watch   Case  Ma- 
terial  Co.,   4116. 

v.  Tribune  Ass'n,  3856. 
Keeney  v.   Home   Ins.   Co.,    1638. 

v.  Morse,  3410. 

V.  Tredwell,  283. 
Keep  v.  Kauffman,  68. 

v.  Kaufman,  77. 

v.  Keep,   2554. 
Kehlenbeck  v.   Logeman,   825. 
Kehrlev   v.    Shafer,    2339,    2340,    2351. 
Keiher  v.  Shipherd,   1420,  3319,   3351. 
Keilev  v.   Dusenbury,   2023,   2143. 
Keilty   v.   Traynor,    1663,    1667,    1829. 
Keim  v.  Keim,  3247. 
Keiny   v.    Ingraham,    2919. 
Keiser  v.  Plath,   2561. 
Keister  v.  Rankin,  2707,  2731. 
Kellar    v.    New    York    Cent.    R.    Co., 
2336. 


TABLE  OP  CASES. 


4253 


[references  are  to  pages.] 


Kellegher  v.  Forty-second  St.  M.   & 

St.  N.  Ave.  R.  Co.,  2322. 
Keller  v.  Cleary,  3709. 

V.  Feldman,  2026. 

v.  New  York  Cent.   R.  Co.,   2229, 
2336. 

v.  Paine,  1406. 

v.  Pavne,  1496,  2562. 

v.  Shrady,    2934. 

v.  Strasburger,    2305,    2333. 

v.  Townsend,   1884. 

v.  West,    Bradley    &    Cary    Mfg. 
Co.,   390. 

v.  Zeigler,   3339. 
Kelley  v.  Burroughs,  2287. 

v.  Hogan,   34,   35,  38. 

v.  Kremer,    1899. 

v.  McMahon,    1605,    2904. 

v.  People,    2182. 

v.  Weber,  1756. 
Kellinger  v.   Roe,   3981. 
Kellock  v.    Dickinson,    4024. 
Kellogg,    Ex  parte,   4010. 
Kellogg,   Matter   of,    532. 
Kellogg-  v.  Baker,   840,   841,  848,   949, 
1063,   1078. 

v.  Clark,  2649. 

v.  Freeman,    3283. 

v.  Griffin.    3105. 

v.  Howell,  3228,  3231. 

v.  Kellog-g-,  815,   3138. 

v.  Paine,  859,  860,  861. 

v.  Stoddard,    2S42. 

v.  Sweenev,   385. 

v.  Wood,   3149. 
Kellum  v.   Durfoo,   2160. 

v.  Knechdt,    2160. 
Kelly,   In   re,   255,    1973,   3040. 
Kelly  v.  Archer,   1530. 

v.  Babcock,    1409. 

v.  Baker,  1516. 

v.  Barnett,   1071. 

v.  Breusing-,   825. 

v.  Brownlow,  1351. 

v.  Charlier,   610,    1591,   2571. 

v.  Chenango    Valley    Sav.    Bank, 
2998. 

v.  Christal,   111,   225,   6S9,  2032. 

v.  Collins,    2108. 

v.  Countryman,    713,    1388. 

v.  Downing-,  1492,  2764,  3431. 

v.  Ernest,    1078. 

v.  Fortv-second    St.    M.    &    S.    N. 
Ave.  Ry.  Co.,  469. 

v.  Home    Sav.    Bank,    4157. 

v.  Israel,  3221,  3222,  3653. 

v.  Jay,  1816. 

v.  Jeroloman,   1591. 

v.  Kelly,    37,    870,    1895. 

v.  Levy,    3332. 

v.  McCormick.    1314,    1365,    1373. 

v.  Madigan,  1892. 

v.  Maltham,   1957,   1962. 

v.  Mesier,  3194. 

v.  Newman,  72. 

v.  New   York   Cent.    &    H.    R.    R. 
Co.,  1803. 

v.  New    York    &    M.    B.    R.    Co.. 
2911     2912. 

v.  Pelham     Hod    Elevating-    Co., 
2286. 

v.  Pratt,   4077. 

v.  Roberts,   1409,   1413. 

v.  Sammis,   839,   846,   953,   1064. 


Kelly  v.  Scripture,  1287. 

v.  Sheehan,   650,   3685,  3692. 

v.  Sheehy,   2735. 

v.  Supreme       Council       Catholic 
Mut.  Ben.  Ass'n,   964. 

v.  Theiss,    3634. 

v.  United  Traction  Co.,  4097. 

v.  Weber,    528,    531. 

v.  Wt-ir,   2026,   2033. 

v.  West,  2008. 

v.  Whitney,   1480. 

v.  Woman  Pub.  Co.,  892. 
Kelsev,    Estate    of,    3083. 
Kelsey   v.   Covert,    2853. 

v.  Griswold,    500. 

v.  Jewett,   2102. 

v.  Northern   Lig-ht   Oil  Co.,   2284. 

v.  Pfandler  Process   Co.,   3655. 

v.  Sarg-ent,    S62. 

v.  Ward,    48. 

v.  Webb,   3351,   3356. 

v.  Western,   3855. 
Kelty  v.  Yerby,  3290. 
Kemeys  v.  Richards,   2595. 
Kemp  v.  Union  Gas  &  Oil  Stove  Co., 

2917. 
Kendall  v.  Hodgins,   2890. 

v.  Stone,    2238. 

v.  "Washburn,    759,    777. 
Kendrick,  Matter  of.  467,  508,  519. 
Kendrick  v.  Wandall,  330. 
Kenna  v.  Atlas  S.  S    Co.,  2120. 
Kennagh   v.   McGolgan,    1007. 
Kennedy    v.    Arthur,    89,    772,    2039, 
2049. 

v.  Ball   &   Wood   Co.,    2356,    2735. 

v.  Barandon,  3426. 

v.  Bridg-man,    3230. 

v.  Carrick,   292,    3327. 

v.  Lamb,    4089. 

v.  McGuire,    3418. 

v.  McKone,       1999,       2599,      2600, 
2647,  2772. 

v.  Mills,  3071. 

v.  Mineola,  3862. 

v.  New   York   Life   Ins.   &  Trust 
Co.,   768. 

v.  Nichols,  1834,  1841. 

v.  Norcott,    3302,    3318,    3345. 

v.  O'Brien,   4025. 

v.  Simmons,    603. 

v.  Thorp,    3281,    3372. 

v.  Weed,    3281. 

v.  White,   2211. 

v.  Wood,   2031,   3664. 
Kennedy   Co.,   F.   A.,    v.  McCormack, 

1887. 
Kenner  v.  Morrison.  2720. 
Kennerly  v.   Tompkins,   1376. 
Kennett  v.  Hopkins.   1559. 
Kenney  v.  Apgar,  2151. 

v.  First     Nat.     Bank     of     Pitts- 
burgh,  2972. 

v.  New    York   Cent.    &   H.    R.    R. 
Co.,    909. 

v.  Sumner,   2653,   3848. 

v.  Vanhorne,    2962. 
Kenny  v.  Geoghegan,  3078. 
Kent   v.    Aetna    Ins.    Co.,    4080,    4120, 
4121,    4129. 

v.  Church  of  St.  Michael,   416. 

v.  Common  Council  of  Bingham- 
ton,  2382,  3869. 

v.  Crouse,   63,  72. 


4254 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


Kent  v.  Popham.   1041. 

v.  Sibley,  3724. 

v.  West,   75,   2869,   3868. 
Kentish  v.  Tatham,  1913. 
Ken  von  v.  New  York  Cent.  &  H.  R. 
R.  Co.,  707. 

v.  Sherman,  2362. 
Kepler  v.  Merkle,  3047. 
Kepner  v.  Betz,  2709,  2730. 
Kerker  v.  Carter,  2174. 
Kern  v.  Rachow,  1293. 

v.  Rackow,  1342,  1343. 
Kerner  v.   Leonard,   780. 

v.  Steck,  3693. 
Kerngood  v.  Jack,  291. 
Kerr  v.  Blodgett,   652. 

v.  Davis,  1913. 

v.  Dildine,  2781,  2819,  3389,  3652, 
3671. 

v.Hays,  1086,  1087. 

v.  Kerr,  2S44. 

v.  Kreuder,  3077,  3080. 

v.  McGuire,  647,  1967. 

v.  Mount,  714,  1543,  1544,  1546. 

v.  Union  Mut.  Life  Ins.  Co.,   391. 
Kerrigan  v.   Lang-staff,   1875. 
Kersh  v.  Rome,  W.  &  O.  R.  Co.,  864, 

867. 
Kerslake  v.  Schoonmaker,   2595. 
Kessler    v.    Levy,    1274,    1289,    1292, 

1326. 
Ketcham  v.  Ketcham,  876. 

v.  Zerega,   951,  959. 
Ketchum  v.   Clark,   2634. 

v.  Edwards,  334. 

v.  Ketchum,  1514. 

v.  Lewis,  60. 

v.  Van  Dusen,  927,  1083. 

v.  Williams,  256. 
Ketehum's    Application,    Matter    of, 

1719,  1724. 
Keteltas  v.  Gilmour,  862. 

v.  Myers,  S27,   854. 
Kettle  v.  Turl,  2682. 
Kenka  Nav.  Co.  v.  Holmes,  3797. 
Keyes  v.  Ellensohn,  2040. 

v.  George  C.  Flint  Co.,  858. 
Keyser  v.  Kelly,  3081,  3082,  3084. 
Key    West    Bldg.    &    Loan    Ass'n    v. 

Bank  of  Key  West,  1513. 
Kiah  v.  Grenier,  3947. 
Kibtae  v.   Wetmore,   1399,  1400,   1463, 

1525. 
Kidd  v.  Curry,  3153,  3188. 

v.  Phillips,  2780. 
Kidder  v.  Horrobin,  137,  143. 
Kiefer    v.     Grand    Trunk     Ry.     Co., 
1739,  2873. 

v.  Thomass,  1081. 

v.  Webster,  1441. 

v.  Winkens,  3653. 
Kieley  v.  Central  Complete  Combus- 
tion Mfg.  Co.,  742,  749,   1387. 
Kiernan    v.    Agricultural    Ins.    Co., 
1990,  1998. 

v.  Campbell,  269,  571. 

v.  Metropolitan     Life     Ins.     Co., 
831 
Kiersted  v.  Orange  &  A.  R.  Co.,  2557, 

2581. 
Kilburn  v.  Coe,  2070. 

v.  Lowe,  2913. 
Kilby  v.  First  Nat.  Bank,  969. 


Killian  v.  Washington,  1520,  2570. 
Killmer  v.  Hobart,   1384. 
Kilmer  v.  Bradley,  3612,  3662. 

v.  Evening     Herald     Co.,      2104, 
2114,  2122,  3004,   3005. 

v.  Hathorn,  3689,  3720. 

v.  O'Brien,    197,   3644. 
Kilpatrick  v.  Dean,  2011. 
Kilroy  v.  Wood,  3403. 
Kilts    v.     Neahr,     3645,     3646,     3892, 
3994. 

v.  Seeber,  1991,  1992. 
Kimball,  Matter  of,  808. 
Kimball  v.  Brown,  497. 

v.  Burrell.  3361. 

v.  Davis,   1755,  2256,  2257. 

v.  Flagg,  1349. 

v.  Mack,  2028. 

v.  Mapes,  1951. 

v.  Rich,  3999. 
Kimbel  v.  Mason,  1042,   2573. 
Kimberly  v.  Blackford,   1891. 

v.  Goodrich,  1891. 

v.  Parker,  2132. 

v.  Stewart,   1891,   2951. 
Kincaid  v.  Archibald,  519,  523. 

v.  Richardson,      196,      197,      467, 
3071,  3072,  3086. 
King,    Matter    of,    16,    17,    306,    1430, 

3614,  3616,  3942. 
King  v.  Ashley,  3616. 

v.  Baer,  3392. 

v.  Barnes,  317,  325,  329,  628,  630, 
1626,    2150,   2753,   2930. 

v.  Brookfleld,  867. 

v.  Brush,  3949. 

v.  City  of  Buffalo,  2391. 

v.  City  of  New  York,  15. 

v.  Greenway,   139. 

v.  Harris,  705,  2831. 

v.  Irving,  3110,  3111. 

v.  Kaim,  2296. 

v.King,  54,  1464,  1525,  1625. 

v.  Kirby,  1276. 

v.  Leighton,  1S26. 

v.  MacKellar,  491. 

v.  Morris,  3230. 

v.  New   York   Cent.    &   H.    R.    R. 
Co.,  2217,   2245. 

V.Norton,    399S,  3999,   4013,   4027. 

v.  Orser,  1544. 

v.  Piatt,   106,  3221. 

v.  Poole,  2903. 

v.  Post,  339,  3762. 

v.  Ross,  864,  2142,   3652. 

v.  Sullivan,       196,       2875,       3631, 
3636,  3646. 

v.  Townshend,  1013. 

v.  Utica  Ins.  Co.,  943. 

v.  Vanderbilt,   1932,   1933. 

v.  Van  Duzer,  2768. 

v.  Van  Vleck,  2141,  2143. 

v.  Village     of     Randolph,     2939, 
2940. 
Kingman  v.  Frank,  3401. 
Kingsbury  v.  Garden,  2314. 
Kings   County   Bank   v.    Dougherty, 

1846. 
Kings'  County  El.  R.  Co.,  Matter  of, 

171. 
Kingsland  v.  City  of  New  York,  38, 
2236. 

v.  Fuller,  3238. 


TABLE  OF  CASES. 


4255 


[references  are  to  pages.] 


Kingsley  v.  City  of  Brooklyn,   3907. 

v.  King-sley,  964. 
Kingston     Bank     v.     Eltinge,     3134, 

Kinka'id  v.  Kipp,  895,  896. 

v.  Richardson,  3645. 
Kinnan  v.  Fortv-second  St.,  M.  &  S. 
N.  A.  Ry.  Co.,  41. 
v.  Sullivan  County  Club,   3887. 
Kinne  v.  International  R.   Co.,  4163. 

v.  Kinne,  2140,  3988. 
Kinner  v.  Delaware  &  H.  Canal  Co., 

2257. 
Kinney   v.    Ellis   H.    Roberts    &   Co., 
192. 
v.  Kiernan,  45. 
v.  Meyer,   2570,    2875. 
v.  Reid  Ice  Cream  Co.,  432. 
v.  Roberts,  1791. 

v.  Roberts     &     Co.,     1717,     1781, 
1788. 
Kinnier  v.  Kinnier,  1012. 
Kinsey  v.  American  Hardwood  Mfg. 

Co.,  4086. 
Kip  v.  New  York  &  H.  R.  Co..  1012. 
Kipp  v.  McLean,  849. 
v.  Rapp,  301,  307. 
Kipper  v.  Sizer,  2788. 
Kirby  v.  Colwell,   1518. 

v.  Kirby,  868. 
Kirdahi  v.  Basha,  3387. 
Kirk  v.  Blashfield,  2917. 
v.  Kirk,  3236. 
v.  Young,  418. 
Kirkbride  v.  Wilgus,  1073 
Kirkland  v.  Aiken,  893. 

v.  Kirkland.   4097,  4098. 
v.  Moss,  1800. 
Kirkpatrick  v.   Goldsmith,   4079. 
Kirsop     v.     Mutual     Life     Ins.     Co., 

1861. 
Kirtz  v.  Peck,  2297. 
Kissam     v.     Bremerman,     258,     365, 
1008. 
v.  Forrest,  2244. 
v.  Hamilton,   2101,   2596. 
v.  Jones,  3887. 
v.  Kissam,  2665. 
v.  Marshall,   687,  1457,  1464. 
v.  Squires,  4059,  4060. 
Kissenger  v.  New  York  &  H.  R.  Co., 

2326,  2337. 
Kissock  v.  Grant,  3133,  3193. 
Kitchen  v.  Lowery,  3418. 
Hitching  v.  Brown,  3013,  3025,  4175, 

4176. 
Kitson  v.  Blake,  2870. 
Kittel  v.  Domeyer,  3407. 
Klaweiter  v.  Hubner.  2009. 
Klein   v.   Continental   Ins.   Co.,    2584, 
2585,  2587. 
v.  Second  Ave.   R.  Co.,   2668. 
Kleiner  v.  Third  Ave.  R.  Co.,  3622. 
Kleinhenz  v.  Phelps,  3144. 
Klemm  v.   New  York  Cent.  &  H.   R. 

R.  Co.,  1029. 
Klemnect  v.  Brown,  431. 
Klenert  v.  Iba,  882,  887,  1662. 
Kley  v.  Healy,  221,  2668,  2841,  2980. 

v.  Higgins,  3626. 
Klinck  v.  Kelly,  1480. 
Kling,  Matter  of,  2814. 
Klinger  v.  Markowitz,  2709. 


Klinke  v.  Levev,  3280. 

Klinker  v.    Third  Ave.    R.   Co.,    2031, 

2302,  3761. 
Klipstein  v.  Marchmedt,  643,  4084. 
Klock,    Matter    of,     114,     197,     3638, 

3646. 
Klock  v.  Brennan,  873. 
v.  Cronkhite,  3161. 
Kloh    v.    New    York    Fertilizer    Co., 

1521. 
Kloppenberg   v.    Neefus,    3041,    3202, 

3203. 
Klots  v.  Fincke,  3841. 
Klumpp  v.  Gardner,  640,  873. 
Knapp,  Matter  of,  291. 
Knapp  v.  Anderson,   684,  3775. 
v.  Brown,  3662,  3667,  3846. 
v.  City  of  Brooklyn,  829,   847. 
v.  Curtiss,   2742,   2905,    2956 
v.  Fowler,  2597,  2598,  2650. 
v.  Greene,  490. 
v.  Hammerslev,  3017. 
v.  McGowan.  4  23. 
v.  Murphy,  3199. 
v.  New     York    El.     R.    Co.,     409, 

2931. 
v.  O'Neill,  1421. 
v.  Post,  605. 
v.  Pults,  712. 
v.  Roche,    947,    2787,    3682,    3694. 

3933. 
v.  Van  Etten,   3747. 
Knauer  v.   Globe  Mut.  Life  Ins.  Co., 

2074,  3897. 
Knauth  v.  Heller,  1045. 

v.  Wertheim,   1028,   3012. 
Kneeland  v.  Martin,  808,  1037. 
Kneering  v.  Lennon,  2963. 
Kneettle  v.  Newcomb,  1428,  1429 
Kneller  v.  Lang,  35,   462. 
Knevals  v.  Davis.  673. 
Knickerbacker   v.   Boutwell,    125 

v.  De  Freest,  2043. 
Knickerbocker  v.   Robinson,   2666. 
Knickerbocker  Bank,  Matter  of,  619. 
Knickerbocker  Ice  Co.  v.  Forty-sec- 
ond St.  &  G.  S.  Ferry  R.  Co.,  1584. 
Knickerbocker     Life      Ins.      Co      v 
Clark,  354,  1952. 
v.  Ecclesine,   1280,   1322,  1348 
v.  Nelson,  1021. 
Knickerbocker    Trust    Co.    v.    One 
onta,  C.  &  R.  S.  R.  Co.,  1964 
v.  Polley,  387. 
Knight  v.  Abell,  1295. 
v.  Beach    2007,   2008. 
v.  Cunnington,  2251. 
v.  Moloney,  3227,  3242. 
v.  Morgenroth,  4142. 
v.  Sackett    &   W.    Lithographing 

Co.,   2280,    2717. 
v.  Vanderbilt,  1352. 
Knipe     v.     Brooklyn     Daily     Eagle, 

4094,  4095,  4097. 
Knoch  v.  Funke,  1893,  2085,  2087. 
Knoll  v.  Third  Ave.  R.  Co.,  2232. 
Knoop,  Matter  of,  206. 
Knop  v.  Dechert,  2218. 
Knope  v.  Nunn,  2574. 
Knorr  v.  New  York  State  Mut.  Ben. 

Ass'n,  1513,  1517,  1522. 
Knowback  v.  Steel  Co.,  1083. 


4-256 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


Knowles   v.   City  of  New  York,  354, 
4091. 
v.  De  Lazare,   3315. 
v.  Uchtenstein,  1666,  3635. 
Knowlton   v.   Atkins,   2557. 
v.  Bannigan,  1721,   1S00. 
v.  Bowrason,   635. 
v.  Providence  &  N.  Y.  Steamship 
Co.,   139,  3637. 
Knox   v.    I'.aHwin,    INS. 
v.  Dubroff,   1682. 
v.  Gleason,  2568. 
v.  Hall  Steam  Power  Co.,  2286. 
v.  Hexter,  3191. 
v.  McDonald,  4025. 
v.  Metropolitan  El.  Ry.  Co.,  487, 
3864. 
Knudsen  v.  Friedery,  1586. 
Kobbe  v.  Price,  2204. 
Koch,  Estate  of,  697. 
Koch,  Matter  of,  2219. 
Koch  v.  City  of  New  York,  98. 

v.  Koch,  2969. 
Koch's  Ex'r,  Matter  of,  2630. 
Koechl  v.   Leibinger  &  Oehm  Brew. 

Co.,   3384. 
Koehler  v.  Adler,  2299. 

v.  Farmers'    &    Drovers'     Bank, 

1588,  1593. 
v.  Farmers'      &      Drovers'      Nat 

Bank,  596,  1589. 
v.  Farmers'      &      Traders'      Nat. 

Bank,  334. 
v.  Hughes,    2612,    2677,    3930. 
v.  Kelly,  1667. 
v.  New    York    El.    R.    Co.,    2074, 

2145,  2161. 
v.  New  York  Steam  Co.,  3SS6. 
v.  Olsen,  3406. 
v.  Sewards,  1801. 
Koehler  &   Co.   v.  Brady,   2812,   3658, 

4071. 
Koelges   v.    Guardian   Life    Ins.    Co., 

2306. 
Koenig   v.   New   York   Life   Ins.    Co., 
1S65. 
v.  Steckel,  3208. 
Koerkle   v.   Pangborn,    1963. 
Kohler  v.  Knapp,  132. 
Kohn  v.  Burtnett,  1342. 

v.  Manhattan   R.  Co.,  2657,  2978- 
2980,  3029. 
Kokomo  Straw-Board  Co.  v.  Inman, 
1438,  1445,  3094. 
v.  Sacho,  1905. 
Kolls  v.  De  Leyer,   999. 
Koons  v.  Martin,  185. 
Kopelowich  v.  Kersburg,   1337. 
Kopetzky    v.    Metropolitan    El.    Ry. 

Co.   2595. 
Kopp'  v.  Kopp,  3238. 
Koppel  v.  Heinrichs,  124,  2063. 
Korman  v.  Grand  Lodge  of  the  U.  S., 

2847. 
Korn  v.  Metropolitan  El.  R.  Co.,  376. 

v.  New  York  El.  R.  Co.,   405. 
Koster  v.   Noonan,   2688. 
Kraeger   v.  Warnock,    3662,    3664. 
Krafft  v.  Wilson,   2932. 
Krakower  v.  Davis,  2692. 

v.  Lavelle,  334. 
Krakowski    v.   North   N.    Y.    Bldg.   & 

Loan  Ass'h,   2369. 
Kramer  v.  Kramer,  1767. 


Kratzenstein  v.  Lehman,   1408,  1466. 

V.  Lehmann,  1482. 
Kraus  v.  Agnew,  1003,   4115. 
Krause  v.  Averill,  807. 

v.  Rutherford,     687,      689,     1329, 
1330. 
Kraushaar  v,  Meyer,  3025. 
Krauss  v.   Hallbeimer,   1741. 

v.  Krauss,  870. 
Kreischer  v.  Haven,  427. 
Kreischer's   Estate,  Matter  of,   3976. 
Kreiser  v.  City  of  New  York,  1867. 

v.  Kitaoka,  32S5,   3336. 

v.  Scofield,  1310,  3193. 
Kreiss  v.    Seligman,    1006. 
Kreitz   v.   Frost,   1079,   1080,   2862. 
Krekeler  v.  Aulbach,    3876. 

v.  Ritter,  954. 

v.  Thaule,  273,  279. 
Krenzle  v.  Miller,  2152. 
Kress  v.  Morehead,  3281,  3292. 

v.  Woehrle,  2766. 
Kring   v.    New   York   Cent.   &   H.    R. 

R.  Co.,  2703,  2706,   2707. 
Krom  v.  Hogan,  341,  1594. 

v.  Kursheedt,  1887. 

v.  Levy,  2239. 
Krone  v.  Klotz,  3333. 
Kroner    v.    Reilly,    3264.    3331,    3510, 

3913. 
Kronfeld   v.   Liebman,    1888. 
Kronsberg  v.  Mayer,  2  968. 
Krooks  v.  Wise,  1472. 
Kroszinski  v.  Wolkoweiz,   575,    1328, 

1347. 
Krower  v.   Reynolds,    61,    62,   71,    86, 

1085. 
Kruger  v.  Galewski,  1083. 
Krugman  v.   Hanover   Fire  Ins.   Co., 
4148. 

v.  Persons,   2104,   2105. 
Kubiac  v.   Clement,  1934. 
Kubie   v.    Miller    Bros.    &    Co.,    3636, 

3646. 
Kubin  v.   Miller,  3686,   3689,   3691. 
Kucklo  v.  Kleis,  4022. 
Kueckel  v.  O'Connor,   2282. 
Kuehn    v.    Syracuse    Rapid    Transit 

R.  Co.,   4058,  4063. 
Kuehnemundt  v.  Haar,   999. 
Kugelman  v.  Barry,  1788. 

v.  Rhodes,    196,    3646. 
Kuh  v.  Barnett,  542,  549,  1576. 
Kuhlman  v.  Orser,  1469,  1485. 
Kult  v.  Nelson,   259. 
Kumberger  v.  Miller,   2261. 
Kummer  v.  Christopher  &  Tenth  St. 

R.  Co.,  2964,  2973,  2986. 
Kunath  v.  Bremer,  2905. 
Kundolf  v.   Thalheimer,   100,   182. 
Kuntz  v.  C.  C.  White  Co.,  1599. 

v.  Licht,   3646,  4001. 

v.  Schnugg,  4104,  4118. 
Kupfer  v.   Frank,   3067,    3068. 
Kurz  v.  Doerr,  3706,  4158,  4164. 

v.  Fish,  1938. 
Kuskie  v.  Hendrickson,  2001. 
Kutner  v.  Fargo,  2320,  3805. 


La  Baeau  v.  People,  2245. 
Labalt  v.  Schulhof,  1441. 
Labar' v.  Koplin,  2284. 


TABLE  OF  CASES. 


4257 


[references  are  to  pages.] 


La  Bau  v.  Huetwohl,   1625. 
Lablanche  v.  Kirkpatrick,  295,  2916. 
Labron  v.  Woram,   2117. 
Lachaise  v.  Libby,  2093,  2094. 
Lachenbruch  v.   Cushman,    4096. 
Lachenmeyer    v.    Lachenmever,    238, 
239,    291,    602,    619,    620,    1315,    3045. 
La     Chicotte    v.     Richmond     Ry.     & 

Elect.  Co.,   884. 
Lacker  v.  Dreher,  1438. 
Lackey  v.  McDonald,  2118. 
v.  Vanderbilt.  837,  999. 
Lacustrine    Fertilizer    Co.     v.    Lake 

Guano  &  Fertilizer  Co.,  1917. 
Lacy  v.  Wilkinson,   891. 
Ladd  v.  Arkell,   29. 
v.  Ingham,  626. 
v.  Moore,  82. 
v.  Stevenson,  703,  2322. 
v.  Terre  Haute,  C.  &  M.  Co.,  765. 
v.  Willett,   2127,    2815,   2830. 
Ladenburg  v.  Commercial  Bank,  764, 
1436,    1438,    1441,    1445,    1448,    1454, 
1519,    1522,    1523,    1524,    1525. 
Ladew  v.  Hudson  River  Boot  &  Shoe 

Mfg.   Co.,   1401. 
Ladow  v.   Groom,   540. 
Ladrick  v.  Village  of  Green  Island, 

4119. 
Ladue  v.  Andrews,   895. 
La  Farge  v.  La  Farge  Fire  Ins.  Co., 
1776. 
v.  Luce,  3029. 
v.  Mitchell,  777. 

v.  Van      Wagenen,      2024,      3222, 
3230. 
La  Femina  v.  Arsene,  1623,  1859. 
Lafevre  v.  Laraway,  2052. 
Laffler  v.  Haft,   3202. 
Lafflin  v.  Travelers'  Ins.  Co.,  747. 
Laflin  v.  Relyea,  3095. 
Lafond  v.  Jetzkowitz,   2967,   2969. 

v.  Lassers,  984. 
La  Forge  v.  Chilson,  1990. 
Lafrentz  v.  Mass,  1884. 
Lagerquist  v.   United   States  Indus- 
trial Ins.   Co.,  2299. 
La  Grange  v.  Merritt,  3858,  4044. 
Lagrave's  Case,  737. 
Lahens  v.  Fielden,   2682,   3663. 
Lahey  v.  Kingon,  2817. 

v.  Kortright,   1064,   3004,   3016. 
Laidlaw    v.    Sage,    2194,    2247,    2283, 
2326,  3608,   3625,  3878. 
v.  Stimson,  1734. 
Laidley  v.   Rogers,   1749. 
Laing  v.  Rush,  2707. 
Laird  v.  Littlefield,  3018. 
Lake  v.  Arnold,  1904. 

v.  Artisans'  Bank,  2722. 
v.  Haseltine,  1375. 
v.  Kels,  811,   4000,   4001. 
v.  Kessel,  2043. 
v.  Sweet,  1082. 
v.  Wendt,  2316. 
Lake    Kenka    Nav.    Co.    v.    Holmes, 

3150. 
Lake  Ontario  Nat.   Bank  v.  Judsbn, 

2204,   2208,  2373. 
Lake  Ontario   Shore   R.    Co.   v.   Cur- 

l  i  ss    38  2 
Lake  Shore  &  M.   S.  R.  Co..  Matter 
of  2969. 

N.  Y.  Prac—  267. 


Lallman  v.  Hovey,  3412. 
Lalor  v.  Fisher,   1343. 
La  Manna  v.  Munroe,  2345. 
Lamb,  In  re,  4059. 
Lamb  v.  Hirschberg,  82S,  911,  944. 
Lambert    v.     Converse,     2817,     2S29, 
3189. 

v.  Paulding,  3103. 

v.  Perry,    S7  5. 
Lambertson  v.  Van  Boskerk,  1276. 
Lamberty  v.  Roberts,  1048,  2697. 
Lamkin     v.     Douglass,      1440,      1443, 
1444,  1452,  1453,  1457. 

v.  Oppenheim,   537,   1290,   1316. 

v.  Palmer,  3876. 

v.  Starkey,  1305. 
Lammer  v.  Stoddard,  489. 
Lamming  v.   Galusha,    60,    68,   999. 
Lamont  v.  Cheshire,  3150,  3160. 
Lamoreux  v.  Morris,  285. 
La  Motte  v.  Archer,  4023. 
Lamoure  v.   Caryl,  2916. 
L'Amoreux  v.  Crosby,  2880. 

v.  Erie  R.  Co.,  1962. 
Lamphere  v.  Hall,   378. 

v.  Lamphere,  2918. 
Lampkin  v.   Douglass,   1456. 
Lampman  v.   Smith,  2625. 
Lamport  v.  Abbott,  72. 
Lampson  v.  McQueen,   1022. 
Lamson   Consolidated   Store   Service 
Co.  v.  Conyngham,  888. 

v.  Hart,  357. 
Lanahan      v.      Caffrey,      2280,      3395, 
3397. 

v.  Drew,  624,   642. 

v.  Henry      Zeltner      Brew.      Co., 
2224,  2291. 
Lancaster  v.  Spotswood,  1410. 
Landau  v.  Citron,  4145. 

v.  Levy,    65,    70,   926. 
Landers  v.  Fisher,  1594,  3604. 

v.  Staten     Island     R.     Co.,     200, 
3S14. 
Landesman  v.  Hauser,  4105. 
Landon  v.   Townshend,  921. 

v.  Van  Etten,   3007. 

V.  Walmuth,  2903. 
Landsberger    v.    Magnetic    Tel.    Co., 

2919. 
Landy's  Will,  Matter  of,  3988. 
Lane  v.  Beam,  1033. 

v.  Bochlowitz,  360. 

v.  Borst,  2643. 

v.  Cary,  647. 

v.  Cole,  1971. 

v.  Doty,  517. 

v.  Equitable     Life     Assur.     Soc, 
4146,  4147. 

v.  Gilbert,  1068. 

v.  Hayward,   707,  884. 

v.  Lamke,  3870. 

v.  Lutz,  1643. 

v.  New  York  Life  Ins.  Co.,   1859, 
1861,  1865. 

v.  Salter,   40,   86,   1010. 

v.  Town  of  Hancock,  1932,   2286. 

v.  Van  Orden,   2941,   2998. 

v.  Wheeler,  3619,  3696. 

v.  Wheelwright,  1468. 

v.  Williams,  868,  1802. 
Laney  v.   Rochester  R.  Co.,  3756. 
Lang  v.  Eagle  Fire  Co.,  380. 


4258 


TABLE  OF  CASES. 


[REFERENCES    ARE   TO   PAGES.  | 


Lang  v.  Ropke,  33. 
Langan  v.  Francklyn,  41. 
Langdon   v.  Evans,  3692,  3721. 
v.  Gray,  1613. 

v.  Guv.  2908. 

v.  Wilkes,  1922. 
Lange  v.    Benedict,   224,   908. 

v.  Garfunkel,  2205. 

v.  Hirsch,  669,  1046. 

v.  Manhattan  Ry.  Co.,  2249. 
Langerman    v.    McAdam,    1807,    1809. 
Langley  v.  Hickman,  2599. 

v.  Wadsworth,  2245. 

v.  Warner,  2360,  3728. 
Langlois  v.   Hay-ward,   2693. 
Langworthy   v.   New   York    &   H.   R. 

Co.,  83. 
Lanier  v.  City  Bank  of  Houston,  778, 
1437,  1340. 

v.  Hoadley,  2388. 
Lanigan  v.  City  of  New  York,   3359. 
Laning   v.    New   York   Cent.    R.    Co., 

3S60,  3873. 
Lanraan    v.    Lewiston    R.    Co.,    3618, 

3847 
Lanning    v.    Carpenter,     2797,    2883, 

2884,  2S88. 
Lannon   v.   Lynch,    3882. 
Lanpher  v.    Clark,   963. 
Lansing,   In  re,  2074. 
Lansing   v.    Blair,    518. 

v.  Bliss,  407. 

v.  Coley,  1765. 

v.  Easton,  1588,  3307,  3422. 

v.  Eddy,  3190. 

v.  Ensign,  959. 

-v.  Gulick,  89. 

v.  Hadsall,  980. 

v.  Lansing,  3096. 

■v.  McKillup,  657,  2890. 

v.  Mickles,  1735. 

v.  Orcott,  3191. 

-v.  Quackenbush,  3153. 

v.  Russell,  2738. 

v.  Van  Alstyne,  2296,  3866. 
Lant  v.  Rasines,   633. 
Lanz  v.  Trout,   2906. 
Lapaugh  v.  Wilson,  262. 
Lapham  v.  Rice,  797. 
Laraway  v.  Ficher,  878. 
Larkin  v.  Brouty,  3230. 

v.  Steele,  189,  590,  3034. 

v.  Watson      Wagon      Co.,      1940, 
3897 
Larner,  In  re,   285,  296,   2110. 
Larocque  v.  Conhaim,  4081,  4151. 

v.  Conheim,  2067. 

v.  Harvey,  817.  4010. 
Larrison  v.  Payne,  2271. 
Larsen  v.  Interurban  St.  R.  Co.,  4148. 

v.  United  States  Mortg.  &  Trust 
Co.,  4169. 
Larson,  Matter  of,  3643. 
La  Rue  v.  Smith,  3898. 
Lasak,  Matter  of,   2108.   2273. 
Lasak's  Will,  In  re,  2374. 
Lasche  v.  Dearing,  3198. 
Lashaway  v.  Tucker,  1417. 
Lasher  v.  Williamson,    974. 
La  Sociata   Italiana   Di    Beneflcenza 

v.  Sulzer,  1087,  2666. 
Lassen  v.  Aronson,  724. 
v.  Burt,  4132. 


Lassig  v.  Barsky,  2198. 
Latham  v.  Bliss,   297  4. 

v.  Richards,  1053,  1054,  1057. 

v.  Westervelt,  1319. 
Lathers  v.  Fish,  34. 
Lathrop     v.     Bramhall,     2375,     2594, 
2595. 

v.  Briggs,  1372. 

v.  Clapp.     170,     330,     3322,     3335, 
3337. 

v.  Ferguson,  3163. 

v.  Heacock,  740. 

v.  Singer,  1426,   3151. 

v.  Woodward,  455. 
Latimer   v.  McKinnon,   4123. 
Latourette  v.  Clarke,  129,  131. 

v.  Latourette,  1406. 
Latson   v.  Wallace,   3921. 
Lattimer  v.  Hill,  2342. 

v.  Livermore,  3013. 

v.  New     York     Metallic     Spring 
Co.,  1072. 
Lattin  v.  McCartv,   60,  62. 
Latz,  Matter  of,  3616. 
Latz's  Estate,   449. 
Landy,   Matter   of,   3930. 
Laufer     v.     Boynton     Furnace     Co., 
1029. 

v.  Sayles,  476. 
Lauferty    v.    Mutual    Reserve    Fund 

Life  Ass'n,    1667. 
Lauffer  v.   Bast,  4038. 
Launitz  v.  Barnum,  2910. 
Laurence  v.  Hopkins,  522,  524. 
Laurie  v.  Laurie,  1583. 
Laux  v.   Gildersleeve,   3767. 
Lavelle     v.     Corrignio,     2688,     2740, 

3890. 
Laverty  v.  Moore,  3244. 
Law   v.    McDonald,    2906,    2926,    2929. 

v.  Merrills,  2347. 
Lawler     v.     Saratoga    County    Mut. 
Fire  Ins.  Co.,   663. 

v.  Van  Aernam,  248. 
Lawlor  v.  French,  2317. 

v.  Magnolia     Metal      Co..      1507, 
1510,  3840. 
Lawrence,   Ex  parte,  3164. 
Lawrence  v.  Baker,  531. 

v.  Bank  of  Republic,   1414,  J.494, 
3970. 

v.  Barker,  2238,  2259,  2261. 

V.  Bush,  2880. 

v.  Church,  1017,  1051. 

v.  Congregational   Church,    3876 

v.  Fowler,  2391. 

v.  Fox,   380,   382. 

v.  Foxwell,   1315,   1318,   1365. 

v.  Freeman,  48. 

v.  Harrington,  531. 

v.  Hogue,  4078. 

v.  Jones,  597,  1518. 

v.  Kohlman,  1348. 

v.  Lindsey,  3992. 

v.  Lynch,  605. 

v.  Metropolitan      El.      Ry.      Co., 
1584,  1596. 

v.  Pease,  3262. 

v.  Samuels,   1822,   1823. 

v.  Schaefer,  392. 

v.  Titus,  2993. 

v.  Wilson,  2743,   2746. 

v.  Wright,  824. 


TABLE  OF  CASES. 


4259 


[references  are  to  pages.] 


Lawrenceville    Cement    Co.    v.    Par- 
ker, 2337,  2613. 
Lawson,  Matter  of,    3979. 
Lawson  v.  Arlams,  2173,  2830. 

v.  Hachman,  1967. 

v.  Hill,   2031,   2034,   2035.   3029 

v.  Hilton,  3889,  4086. 

v.  Hoffman,  3997. 

v.  Lawson.  151S. 

v.  Metropolitan      St.      Ry.      Co  , 
2321,  2337. 

v.  Pincknev.  3S55. 

v.  Reilly,  3011. 

v.  Speer,  4083. 

v.  Terminal       Warehouse       Co., 
1861. 

v.  Town  of  Woodstock,  2074. 

v.  Tyler,  4067. 
Lawton    v.    Green,    1604,    1605,    1608. 
1610,  1614,   4136. 

v.  Kiel,  559,  1434,  4080. 

v.  Lawton,  429. 

v.  Reil,  1434. 

v.  Shepherd,  1704. 
Lawyer  v.  Smith,  2694. 
Lawyers'    Title   Ins.    Co.    v.    Stanton, 

3283. 
Layman    v.    New    Tork    Bank    Note 

Co.,  2118. 
Layton     v.     McConnell,      722,      2760, 

2769. 
Lazarus  v.   Danziger,   3957. 

V.  Ludwig,  4010. 

v.  Metropolitan  El.  Ry.  Co.,  424, 
1050,  3906. 

v.  Schroder,  1734. 
Lazelle's     Estate,     Matter     of,     294, 

3082. 
Lazzaro  v.  Maugham,  1755. 
Lazzarone  v.   Oishei.   812. 
Leach  v.  Bovnton,  1072. 

V.  Haight,  1784. 

V.  Linde,  1299. 

v.  Smith,  29. 

v.  Williams,  2343. 
Leadbetter  v.  Leadbetter,  3114. 
Leahey  v.    Kingon,   2817. 
Leahy  v.   Campbell,   514. 
Learn  v.  Currier,  2908. 
Learned  v.  City  of  New  York,  945. 

v.  Tillotson,      2110,      2163,     2165, 
2166. 

v.  Vandenburg,    1465,    1474,   1482. 
Leary  v.  Albany  Brew.  Co.,  2558. 

v.  Melcher,  60. 

v.  O'Brien,  1780. 

v.  Rice,  1799. 
Leavitt  v.  Dodge,  2295. 

v.  Fisher,  884. 

v.  Yates,  1566. 
Leavy  v.  Leavy,   1072. 

v.  Roberts,   2653,  2706,  3682. 
Leaycroft  v.  Fowler,  2553. 
Lebar  v.  Koplin,  2358. 
Le  Boeuf  v.  Gray,  4122. 
Le    Brantz   v.    Campbell,    4101,    4117, 

1429. 
Lederer  v.  Adams,  732. 

v.  Adler,  4138. 

v.  Ehrenfeld,   3259,   3299. 
Lederer  Amusement  Co.   v.   Pollard, 

799. 
Ledgerwood  Mfg.  Co.   v.   Baird,    952. 


Ledoux  v.  East  River  Silk  Co.,  1531. 
Ledwich  v.  McKim,  30. 
Ledyard  v.  Burke,   3086. 

v.  Jones,   2692,    3187. 
Lee,  Matter  of,   1772. 
Lee  v.  Chadsey,  2257. 

v.  Co-operative  Life  &  Ace. 
Ass'n,  1443. 

v.  Corn,   1348. 

v.  Flint,  880. 

v.  Heirberger,  3286. 

v.  Homer,  1459,  1460. 

v.  Jacobs,  1073. 

v.  Kendall,  56. 

v.  La  Compagnie  Universelle  Du 
Canal  Interoceanique,  1434, 
1441. 

v.  Lee,  18,  3233,   4105. 

v.  McLaughlin.  2366,  2760. 

v.  Troy  Citizens'  Gas-light  Co., 
2322. 

v.  Vacuum  Oil  Co  ,  298,  302. 

v.  Valley  Paper  Mill,  1518. 

v.  Watkins,    3071. 

v.  Winans,  4062,  4079,  4145. 
Lee  Bank  v.   Kitching,   833,   1078. 
Lees  v.  Hayden,  3426. 
Leetch    v.     Atlantic    Mut.    Ins.    Co., 

1754,    1756,    1763. 
Lefevre  v.  Laraway,  3219,  3224,  3227 
3229. 

v.  Latson,  893. 

v.  Matthews,  133. 

v.  Phillips,   2792,   3391. 
Lefferts    v.     Brampton,     1828,     1838, 
1844. 

v.  Silsby,  958. 
Leffingwell     v.      Chave,     672,      1327, 
1570,    1579,    1581,    1586,    1587. 

V.  White,  694. 
Lefler  v.  Field,  2245,  2370,  2618,  2629. 
Leftwick  v.  Clinton,   1903,  3947. 
Lefurgy   v.   New    York   &   N.    R.   Co., 

486. 
Legate  v.  Lagrille,   814. 
Leggatt  v.  Waller,  3365. 
Leggett  v.  Boyd,  2031,   2117. 

v.  Dubois,  1604. 

v.  Hyde,  2287. 

v.  Sloan,   3324,   3349. 

v.  Walker,  3261. 
Legrand    v.    Manhattan    Mercantile 

Ass'n,  913. 
Lehigh   Stove   &  Mfg.    Co.   v.    Colby 

222S. 
Lehigh  &  N.  E.   R.   Co.  v.  American 

Bonding  &  Trust  Co.,  4106. 
Lehmaier  v.  Buchner,   1437,   1449 

v.  Griswold,  3339. 
Lehmair  v.  Griswold,   979. 
Lehman  v.  Koch,  921,  2079,  2089. 

v.  Mayer,  3199. 

v.  Williams,  1499. 
Lehrer   v.  Walcoff,   4071. 
Leich,  Matter  of,  2234. 
Leigh  v.  Atwater,  869. 

v.  Thomas,  416. 
Leighton   v.   Wood,   2172,   2173,   2867. 
Leiser  v.  Rosman,   1520. 
Leitch  v.  Cumpston,  633. 
Leland  v.  Cameron,  3226. 

v.  Hathorn,  352,  1963. 

v.  Smith,  1662,   1665. 


4260 


TABLE  OF  CASES. 


[REFERENCES   ARE   TO   PAGES.] 


Iiemien  v.  Lemien,   2385. 

Lemoine  v.Gauton .2252 

Lemon   v.  Smith,  2080,   -<>•' -  v       cis 

Lenehai)    v.    College    of    St.    Francis 

Xavier,  3233. 
Lenhard  v.  Lynch,  184. 
Lennon  v.  Brandt,  1324. 

V.Macintosh,    2069 

v  Metropolitan     Life     Ins.     to., 
ISfiO,  1S65. 

V.  Smith    2553.   2557,   3869 
Lennox      Corporation,      Matter      of, 

lf'35-  /„HO 

Lent  v.  Jones,  4018. 

v.  McQueen.   3423     3424. 

V  New  York  &  M.   Ry.  Co.,   405, 

925.  954. 
v.  Ryder,  1939.  _, 

Lentilhon  v.  City  of  New  York,  278.5, 

3726. 
Lent's  v.   Craig:,   3230. 
Lentschner      V.      Lentschner,      2378, 

Leo3  v5' Joseph,  2836    3272. 
Leon,  Matter  of,  145 

v.  Brooklyn      Heights      R.      Co., 
9^27 
Leonard  "v.  Bowman    3282    3286. 
v  Citv  of  Brooklyn,  3106. 
v.  Collins,  2341. 
v  Columbia     Steam     Nav.      Co. 

117,  2784. 
v.  Crow,  913. 
v.  Ehrich,  356. 
v.  Faber,  1663. 

v  Germania  F.  Ins.  Co.,  27ld. 
v.Manard,  547,  2937. 
v.  Mulry,  2631. 
v.  Pitney,  494. 
v  Union  R.  Co.,   4175. 
Leonorovitz  v.  Ott,   4109 
Leopold  v.  Delaware  &  H.  Canal  to., 
2286. 
V.Myers.  249,  2050 
Leprell   v.   Kleinschmidt,   2766,    2910. 
Lerner  v.  Wagner,   3915. 
T,e  Rov  v.  Bedell,   1699. 

v  Browne,    2902,   2910,   3036. 
v  City  of  New   York,   158. 
v!  Halsey,  3321,  3322,  3324. 
v.  Rogers,  3402. 
v.Shaw,  411. 
Lertora  v.  Reimann,  66Ub. 
Lf  Sage  v.  Great  Western  Ry.   Co., 

814 
Leslie,  Matter  of    3287. 
Leslie  V.  Leslie,  1-67,   211"-  ?q 

v  Saratoga    Brewing    Co.,    &IM, 

3241,  3242. 
v.  Walrath,  1993 
Lesser  v.  Gilbert  Mfg.  Co.,  1038. 
v.  Lesser,  1650. 
v.Perkins,  2304. 
v.Williams,   663,   1945. 
T.esster     v.     Lawyers'     Surety     Co., 

1637,  3709,  3965,  3966. 
Les    Successeurs    D'Arles   v.    Freed- 

man,  853.  ,,„.,„ 

Lester  v.  Blodgett,  1317. 
v.  Clarke,  4100. 

v.  Delaware,  L.  &  W.  R.  Co.,  si. 
V.  Redmond,  203. 
Letson  v.  Evans,  69. 


Lettman  v.  Ritz,  1036,  1045. 

Leven  v.  Russell,   3432 

Levene  v.   Hahner,    2907,   2992,    3938,. 

Leverson   v.    Zimmerman,    210,    3669, 
Levey  v.  Bull,  3263. 

V  Dennett.  2673,  2081,  3800 

v  New    York    Cent.    &   H.    R.    K. 

Co.,   1805,   1828. 
v.  Tribune  Ass'n,  1667. 
v.  Union   Print  Works,    83. 
Levi  v.  Dorn,  3779.  „„, 

v.  Jakeways,   886,   888,   915. 
Le  Vie  v.  Fenton,  4107. 
Levien  v.  Webb,   3692. 
Levin  v.  Dietz,  4107. 

v.  Haas,   1708,   2921. 
v.  Russell,  2267. 
Levis  v.  Burke,  293,  299,  3595. 
Levor  v.  Seiter,   1530. 
Levy,  Matter  of,  1903.  1909,  1979. 
Levy  v.  Beacham,  3285. 
v.  Bernhard,  1345. 
v.  Bull,  3364. 
v.  Burgess,  2007. 
v.  Cohen,  4091. 
v.  Dunn.  1549. 
v.  Elv.  1575. 
v.  Goldstein,  1436. 
v.  Hanneman,  1689. 
v.  Harris,  2283. 
v.  Kirby.  3260. 
v.  Levy,  552. 

v.  Loeb,  635.  nAon 

v  Newman,   451,   511,  2039. 
v.  Nicholas,  1368. 
v.  Popper,  4079. 
v.  Rosenstein.  1576. 
v.  Salomon,   1350,   1353    3212. 
v.  Swick  Piano  Co,  3259,  3268. 
Levy's  Accounting,  2637. 
Levy's  Will,  In  re,  2667 
Lewin     v.     Lehigh    Valley     R.     Co., 
2868. 3707. 
v.  Towbin,  3767. 
Lewis,  Matter   of,   16,   492. 
Lewis  v.  Acker,  617. 
v.  Barton,  904. 
v  Boardman,  3409. 
v.  City  of  Buffalo,  1011. 
v  City  of  Syracuse,  484. 
v!  Cook,  1014. 
v.  Dodge,  2015. 
v.  Donohue,  2206. 
v.Douglass,   1453,  1465,   1472. 
v.  Elmendorf,  1311. 
v.  Farrell,   1885,  1897. 
v.  Graham,  585. 
v  Guardian  F.   &  L.   Assur.   Co., 

4054,  4070. 
v.  Hoffman,  4003. 
v.  Hojer,  2327. 
v.  Howe,  59. 
v.  Iba,  2293. 

v  Irving  Fire  Ins.  Co.,  2567. 
v.  Jones,  2828,  3978. 
v.  Merritt,  2662. 
v.  New     York     Dry     Dock     Co. 

9919 
v.  New  York  &  H.  R.  Co..  461. 
v.  Oliver,  1568. 
v.  Palmer,  2237. 
v.  Pollack,  4122,  4130. 


TABLE  OF  CASES. 


4261 


[REFERENCES  are  to  pages.] 


Lewis  v.  Penfleld,  3314. 
v.  Ryder,  2227. 
v.  Snook,  2564. 
v.  Woodruff,  272. 
Lewishon  v.  Drew,  3393. 
Lewisohn    v.    Kent    &    Stanley    Co., 

1442,  1525. 
Lewisohn  Bros.   v.   Muller,   1785. 
Lewke  v.   Dry  Dock,   E.   B.    &  B.   R. 

Co.,  2197,  2277. 
Lewy  v.  Fox.   2817. 
Lexington   Ave.,  Matter  of,   2755. 
Lexow  v.    St.   Lawrence   Marble  Co., 

1402. 
Libbey  v.  Mason,  3990. 
Libby  v.  Libbv,  162  4. 

v.  Rosekrans,   223,   630. 
v.  Van  Derzee,   4074,   4077. 
Libman  v.   Manhattan   Ry.    Co.,    844, 

2140,  2142. 
Licausi  v.  Ashworth,  4090. 
Lichstrahl  v.  Lichstrahl,  1315. 
Lichtenberg  v.  Herdtfelder,  3394. 
Liddle,  Matter  of,   1424. 
Liddle  v.  Thatcher,  1603. 
Liddy  v.   Long  Island  City,   3731. 
Lidgerwood     Mfg.     Co.     v.     Rogers, 

2655. 
Liebmann's  Sons  Brewing  Co.,  S.,  v. 
Cody,   878. 
v.  De  Nicolo,  4110. 
Liegeois  v.  McCrackan,  1015,  2776. 
Lienan  v.  Lincoln,   829. 
Light,  Matter  of,   3639. 
Lignot  v.  Redding,  51,  969. 
Lilienthal  v.   Wallach,   3334. 
Lilliendahl  v.   Fellerman,   3257. 
Lillis  v.   O'Connor,   2912. 
Lima    &   H.    F.    Ry.    Co.,    Matter    of, 

13,   16. 
Linacre  v.  Lush,   2977. 
Lincoln  v.  Battelle,   1755,  2314. 
v.  Lincoln,  2640. 

v.  Saratoga  Common  Pleas,  4001. 
Lincoln  Nat.  Bank  v.  Butler,  914. 

v.  Kirk,  2287. 
Lindblad  v.  Lynde,    1043,    1044,   4121. 
Lindemann  v.   Brooklyn  Heights  R. 

Co.,  2273. 
Linden  v.  Hepburn,  72,  928,  1557. 
Lindenheim  v.  New  York  El.  R.  Co., 

1053,  1059. 
Lindenthal    v.    Germania    Life    Ins. 

Co.,   2375,   3877. 
Lindheim  v.  Duys,   2216. 

v.  Manhattan    Ry.    Co.,    273,    901. 
Lindon  v.  Beach,  3712. 
Lindsay  v.  Jackson,  969. 
v.  Mulqueen,  30. 
v.  People,  2272. 
v.  Sherman,  544,  3280. 
v.  Tansley,  4019. 
Lindsey  v.  Sheldon,  1947. 
Lindsley  v.  European  Petroleum  Co., 
2206. 
v.  Sheldon,  4152. 
v.  Van  Cortlandt,  2790. 
Lingsweiler  v,  Lingsweiler,   3299. 
Link  v.  Mack,   2011,   2012. 

v.  Sheldon,  2232. 
Linne  v.  New  York  City,  3019. 
Linnendoll  v.  Doe,  3130. 


Lintner    v.    Long    Island    Mut.    Fire 

Ins.  Corp.,   1888. 
Lintzenich  v.   Stevens,  1022. 
Liprhan     v.     Jackson     Architectural 

Iron  Works,  972,  1092. 
Lippencott  v.  Goodwin,  949,  964. 
Lippincott  v.  Westray,   624,   3857. 
Lippitt  v.   St.   Louis  Dressed  Beef  & 

Provision  Co.,  2275. 
Lippman  v.  Petersberger,  1352. 
Lippmann  v.   Blumenthal,  287S. 
Lipschutz  v.   Ross,  4157. 
Liquori  v.  Yutkoff,  1666. 
Lisher  v.  Parmelee,  1664. 
Lisner  v.   Toplitz,   3290,   3303. 
Lissberger  v.  Schoenberg  Metal  Co., 

3012. 
Lister  v.  Wright,  131. 
Listman  v.  Hickey,  3907. 
Litch  v.  Brotherson,  2602. 
Litcheld    v.    Burwell,    666,    784,    789. 
2052. 
v.  City  of  Brooklyn,   1562. 
v.  Dezendorf,  2141. 
v.  Flint,  383,  921. 
v.  International    Paper   Co.,    349. 

352. 
v.  Irvin,  44. 
v.  Sisson,  2706. 
Littauer  v.   Stern,   805,   2847,   4090. 
Littell  v.  Sayre,  1005. 
Little,  Matter  of,  2637. 
Little  v.   Banks,   380. 
v.  Bigelow,  2575. 
v.  Gallus,  3903. 
v.  Harvey,  2S01. 
v.  Lynch,   2626,    2628. 
Littlefield   v.   Albany   County  Bank. 
970. 
v.  Littlefield,  530. 
v.  Murin,  2126. 
Littlejohn  v.  Greeley,  833,  1069. 

v.  Lefflngwell,      773,      775,      1563. 
1595. 
Littlewood    v.    City    of    New    York. 

4075. 
Littman  v.  Coulter,  976. 
Livermore  v.  Bainbridge,  1047,  2082. 
210S,  2109,  2631. 
v.  Berdell,   2105,   2109. 
v.  Northrup,    3194. 
v.  St.  John,  1833,  1840,  1852. 
Livingston,    Matter   of,    16,    570,    606, 

1308,  3258. 
Livingston    v.    Arnoux,     3163,    3173. 
3180,  3181. 
v.  Bank  of  New  York,  542,  1576. 
v.  Bartles,  1366. 
v.  Cheetham,  545,  2055. 
v.  City  of  Albany,  3883. 
v.  City  of  New  York,  2139. 
v.  Columbian  Ins.   Co.,   2056. 
v.  Comstock,  659. 
v.  Curtis,   1849,  3635. 
v.  Gibbons,  1559. 
v.  Gidney,  2625,  2628. 
v.  Hammer,  1071,   1074. 
v.  Harrison,  2009. 
v.  Keech,   2243,  2244,   2248. 
v.  Manhattan  R.  Co.,  3904. 
v.  Metropolitan  El.   R.   Co.,  3868. 
v.  Miller  81,  2679. 


4262 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


Livingston   v.  Now   York   El.   R.  Co., 
658,   3690,  3691,  3692. 
v.  Olyphant,  262. 
v.  Tanner,  64. 

v.  Vielle     Montagne     Zinc     Min. 
Co.,   2974. 
Livor  v.   Orser,   1428. 
Lloyd    v.   Burns,    951. 
Lochlin  v.  Casler,   2119. 
Lochte  v.  Moeschler,  809. 
Locke  v.  Mabbett,  3660. 
Locklin  v.  Casler,  2924. 

v.  Moore,   80,   2007. 
Lockman  v.   Ellis,   3023. 
Lockwood  v.  Bartlett,  2760. 
v.  Brantly,    768. 
v.  Fox,   1694,   2658. 
v.  McGuire,  3231. 
v.  Mercereau,    1337. 
v.  Quackenbush,   3859. 
v.  Salhenger,  1074,  1080. 
v.  Salmon  River  Paper  Co.,  2968, 

3002,   3005,   3021. 
v.  Sello,  3287. 
v.  Waldorf,    2914. 
v.  Worstell,    3256. 
v.  Younglove,    1419,    1421. 
Locomobile  Co.  of  America  v.  Amer- 
ican Bridge  Co.,   4053. 
Loder  v.  Hatfield,  470,  472. 
Loeb   v.   Hallman,    3864. 

V.  Smith,  3602. 
Loeber  v.   Roberts,   867. 
Loesche  v.  Griffin,  1883. 
Loeschigk  v.  Addison,   175,  2772. 
Loew,  Matter  of,   251. 
Loewenstein   v.   Diamond   Soda  Wa- 
ter Mfg.   Co.,  4046. 
Loewenthal  v.  Philadelphia   Rubber 

Works,   840. 
Logan  v.  McCall  Pub.  Co.,  3259. 
v.  Moore,   62. 
v.  Thomas,   3029. 
Logeling    v.    New    York    El.    R.    Co., 

514,   3668. 
Logue  v.   Gillick,   4013. 
Lohman   v.   People,   2246. 
Lomar  v.   Meeker,    2760. 
Lomb  v.   Richard,  4050. 
Lomer    v.    Meeker,    2281,    2283,    2287, 

2290    2328. 
LoridheimV.  White,  3261. 
London  v.  Martin,   3864. 
London  &  Brazilian  Bank  v.  Walk- 
er,   1607. 
Londriggan  v.  New  York  &  N.  H.  R. 

Co.,  454. 
Long  v.  American  Surety  Co.,  684. 
v.  Burke,    4072. 
v.  City  of  New  York,  1011. 
v.  Hall,  1887. 
v.  Majestre,  1897. 
v.  Stafford,   469,   2095,  2102,  2723, 
2724,    2785. 
Long  Island  Bottlers'  Union  v.  Bot- 
tling   Brewers'    Prot.    Ass'n,    1776, 
1790. 
Long    Island    L.    &    T.    Co.    v.    Long 

Island  City  &  N.   R.  Co.,  3020. 
Longbotham,   Matter   of,   4074. 
Longbotham's     Estate,     Matter     of, 

473. 
Longprey  v.  Yates,  837. 
Longrill  v.  Downey,  1883. 


Longstreet  v.   Sawyer,  1896. 
Longuemare    v.    Nichols,    1351,    1352, 

3067. 
Longyear  v.  Carter,  293,  299. 
Looff  v.  Lawton,   242,  251. 
Loomis  v.   Brown,  403,  905,   1610. 

v.  Decker,    522,    2146. 

v.  People,   3324. 

v.  Spencer,    2880. 

V.  Tifft,   1006. 
Loonam  v.  Myers,   2610. 
Loop  v.  Gould,  335. 
Looram  v.  Second  Ave.  R.  Co.,  2217, 
2349. 

v.  ThirdAve.  R.   Co.,   2344,   2667. 
Loos,  Matter  of,  3145. 
Loos  v.  Wilkinson,  3428,  3434. 
Loosey  v.  Orser,  961,  3210. 
Lopez  v.  Campbell,   3126,   3186. 

v.  Merchants'    &    Farmers'    Nat. 
Bank,    1496. 
Lord   v.    Brown,    2194. 

v.  Chesebrough,   S55,    1071. 

v.  Ostrander,   47,    51. 

v.  Spielman,    1S30,    1842,   1844. 

v.  Vandenburgh,  659. 

v.  Van   Gelder,   2334,    2661. 
Lord's  Estate,  Matter  of,  2571. 
Lore  v.   Dierkes,   3416,   3429. 
Loretz    v.    Metropolitan    St.    R.    Co., 

1950. 
Lorillard  v.  Barnard,  290,  292. 

v.  Clyde,  55,  380,  383,  830. 
Lorillard   Fire  Ins.  Co.  v.  Meshural, 

51,   1285,  1303.      ■ 
Loring  v.  Binney,  777. 

v.  Morrison,      1992,      2919,      3962, 
396S. 

v.  United       States       Vulcanized 
Gutta     Percha     Belting     & 
Packing  Co.,  116. 
Lorzing  v.    Eisenberg,   2873. 
Losee  v.   Allen,   32S8. 

v.  Bullard,    488,    2935,   2998,    3955. 

v.  Mathews,   2704. 
Losey  v.   Stanley,   18,   735. 
Lossee  v.  Ellis,   2926. 
Lott  v.   Swezey,    3910. 
Lotterle  v.  Murphy,  144. 
Lotti  v.    Krakaner,   3026,    3032,    3034. 

v.  Krakauer,   236,   3037. 
Lottimer  v.  Lord,  1621,  1635. 
Louda    v.    Revillon,    4142. 
Louden   v.    Louden,    3660. 
Loudoun    v.    Eighth   Avenue   R.   Co., 

2305. 
Lough  v.  Outerbridge,  957. 

v.  Romaine,  2697,   2742. 
Louis  v.  Belgard,  3435,  3436. 
Lounsbury  v.  Purdy,   1036,   1083. 

v.  Sherwood,    2959. 
Lovatt  v.  Watson,   1663. 
Love  v.   Humphrey,   357,   1313. 
Lovee  v.  Carpenter,  3203. 
Loveland  v.  Burnham,   1579. 
Lovell  v.   Clarke,    1834. 

v.  Martin,    639,    1289,    1349. 
Loverin  v.  Lenox  Corp.,  2558. 
Low  v.  Graydon,  597,  1048,  1849. 

V.Hall,   2346. 

v.  Hallett,    360. 

v.  Mumford,    412. 
Lowber   v.    City   of   New    York,    239, 
2890,   3261. 


TABLE  OF  CASES. 


426a 


[REFERENCES  are  to  pages.] 


Lowell  v.  Lane,  982. 
Lowene  v.   Vail,   2119. 
Lowenstein    v.    Lombard,    Ayers    & 
Co.,    2366. 

v.  Schiffer,    1918. 
Lowenthal  v.  Leonard,  1835. 
Lower  v.  Winters,  2255. 
Loweree  v.  Tallman,   3776,   3777. 
Lowerre  v.  Vail,  2980. 
Lowman  v.   Elmira,   C.   &  N.   R.  Co., 

2839. 
Lowry  v.   Inman,   1016. 
Loy  v.  Metropolitan  El.  R.  Co.,  3594. 
Lucas    v.     East    Stroudsburg    Glass 
Co.,  982. 

v.  Ensign,   308. 

V.  McEnerna,   2301. 

v.  New  York  Cent.   R.  Co.,   76. 
Luce  v.  Alexander,   945,   1709. 

v.  Gray,  383. 

v.  Morison,  2780. 

v.  Trempert,  2126. 
Lucia  v.   Omel,   3688. 
Ludden  v.  Degener,  780. 
Ludeman   v.   Third  Ave.   R.  Co.,   270, 

2694,   2695. 
Ludington   v.   Bell,    2117. 

v.  Low,   1651. 

v.  Taft,  2557. 

v.  Thompson,    489,   505,   1645. 
Ludlow   v.    Hackett,    2117. 

v.  Hudson  River  R.  Co.,  486. 

v.  McCarthy,    976. 

v.  Mead,  575,  3281. 
Ludvigh    v.    Dusseldorf,    1562. 
Ludwig  v.  Blum,  779,  1388. 

v.  Bungart,  158. 

v.  Gillespie,    386. 

v.  Minot,   125. 
Luft  v.   Graham,  3850. 
Lugar  v.  Byrnes,   1067,   2621. 
Luhrs  v.    Brooklyn   Heights   R.    Co., 
2284. 

v.  Commoss,    808. 
Luikert  v.   Luikert,   4060. 
Lukens   Iron   &   Steel   Co.    v.   Payne, 

1402. 
Lultgor    v.    Walters,    2918. 
Lumbard    v.    Syracuse,    B.    &    N.    T. 

R.   Co.,  1999,  3922. 
Lumley    v.    Anatron    Chemical    Co., 

1515. 
Lund  v.   Broadhead,  2915,   2916. 
Lundine  v.  Callaghan,   4110. 
Lunney  v.   City   of  New  York,   1040. 
Lupean  v.   Brainard,   955. 
Lusher  v.  Walton,  2575. 
Lusk   v.    Hastings,    261. 

V.  Smith,   171. 
Lustig  v.   New   York,  L  E.   &   W.    R. 

Co.,  1034. 
Lutweller  v.   Linnell,   2281. 
Lutz   v.    Third    Ave.    R.   Co.,    2101. 
Lux  v.  Davidson,   1414. 
Lycett    v.    Manhattan    Railway    Co., 

2350. 
Lvddy  v.   Chamberlain,   2788. 
Lyddy's  Will.   Matter   of,    2241. 
Lydecker  v.   Smith,  3274. 

v.  Village  of  Nyack,   2667. 
Lyke  v.  Post,  928. 
Lyle  v.  Little,   2211,  2767. 

v.  Smith,  571. 
Lym  v.   Block,    2175. 


Lyman,  Matter  of,  3834. 
Lyman  v.  Corev,   1955. 

V.  Dillon,  282. 

v.  Fidelity  &  Casualty  Co.,  2207, 
2303. 

v.  Grame'rcy      Club,      355,      1929, 
1948,    1955,    1958. 

v.  Matty,    1929. 

v.  Young     Men's      Cosmopolitan 
Club,    2981,   3036. 
Lyme  v.  Ward,  3921. 
Lynch,  Matter  of,  329. 
Lynch  v.   Andrews,   S05. 

v.  Crary,    1413,    1472. 

v.  Dorsey,    4096. 

v.  Dowling,    207. 

v.  Elektron  Mfg.  Co.,  4050. 

V.  Eustis,    4089. 

V.  Henderson,    1848. 

v.  Johnson,       3295,      3297,       3304, 
3327,  3329. 

v.  Livingston,  310. 

v.  Lynch,   512. 

v.  Metropolitan   El.   R.  Co.,  2161. 

v.  Mosher,    1947,   1954. 

v.  Riley,   3280. 

v.  Rome  Gas  Light  Co.,  2768. 

v.  St.   John,   1862. 

V.  Sauer,    3705,   3709. 

v.  Second  Ave.   R.   Co.,   834. 

v.  Todd,   890. 

v.  Tomlinson,   3275. 

v.  Walsh,    1066. 
Lynch's   Estate,    In   re,    499. 
Lynde   v.    Cowenhoven,   2771. 

v.  Lynde,   811. 

v.  Montgomery,    1398. 
Lynk  v.  Weaver,   1993,  2908. 
Lyon  v.   Adde,   446. 

v.  Botchford,   1583,  1590,  1595. 

v.  Brown,  2364. 

v.  Davis,    1933. 

v.  Hersey,    1613. 

v.  Isett,    1054,   1057. 

v.  Lyon,    361. 

v.  Manhattan  Ry.  Co.,  1819,  1820, 
1823. 

v.  Marshall.  3863. 

v.  Merritt,  3914 

v.Park,  1908,  2071,  2083,  2085, 
2096. 

V.  Wilkes,  19S2. 

v.  Yates,  1546,  3193. 
Lyons   v.   Cahill,   684. 

v.  Erie  R.  Co.,   2668. 

v.  Murat,    892,   1880. 

v.  New  York  El.  Ry.  Co.,  2270. 

V.  Smith,   3S63. 

v.  Third  Ave.  R.  Co.,  2102. 
Lvster  v.   Pearson,   736,   741. 
Lythgoe  v.  Lythgoe,   2787,    2788. 
Lytle  v.  Crawford,   270,   946. 
Lyungstrandh    v.    William    Haaker 
Co.,   1092. 


M. 

Maas  v.  Ellis.   2740. 

Maass    v.     McEntegaxt,     3254, 

3314. 
Mabbett  v.  White,   2269. 
Mabie  v.  Bailey,  490. 
McAdam,  Matter  of,   1984. 
McAdam  v.   Walbrau,   817. 


5255, 


4264 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.J 


McAfee  v.   I'ix,  4165. 
McAlear  \.  Delaney,  3889. 
McAleer  v.  Sinnott,  2140,  2563. 
McAllaster  v.  Bailey,  1414. 

v.  Britton,   2254. 
McAllen,  Petition  of,   1873. 
McAllister  v.  Case,  2596. 

v.  Ferguson,   2327. 

v.  Pond,   1S41. 
MeAndrew    v.    Lake    Shore    &    M.    S. 
Ry.  Co.,  1056. 

v.  Place,   2576. 

v.  Whitlock,   2612,    2618. 
McArthur    v.    Commercial    Fire    Ins. 
Co.,   1674,  1679. 

v.  Hoysradt,  3397,  3405,  3425. 

v.  Soule,    1727. 
MacAuley,  Matter  of,  811,  894. 
Macauley  v.  Palmer,  335,  446. 

v.  Smith,     1407. 
McAveney  v.  Brush,  325. 
McAvoy   v.    Cassidy,    2666. 
McBratney  v.  Rome,  W.  &  O.  R.  Co., 

269,   2114,  2120. 
McBride,   Matter  of,   287. 
McBride    v.    American    Surety    Co., 
1007. 

v.  Chamberlain,  2955. 

v.  Farmers'     Bank,     1384,     1480, 
2289. 

v.  Langan,    1321. 
McBurney  v.  Martin,  1287. 
McButt  v.  Hirsch,  1293,  1298,  1322. 

v.  Murray,  144. 
McCabe  v.   Bray  ton,   2249. 

v.  Doe,   920. 

v.  Fogg,    293,    299. 

v.  O'Connor,   2666. 
McCafferty  v.   Glazier,   1565. 
McCaffrey   v.   Butler,    1681. 

v.  Hickev,    33S4. 
McCahill  v.    Mehrbach,    521. 
McCall  v.    Frith.    1884,    1906. 

v.  McCall,  2830. 

v.  Moschowitz,    2568,    2582,    3718. 

v.  Sun  Mut.  Ins.   Co  ,   2295. 
McCallan   v.   Brooklyn   City    R.    Co., 

2259. 
McCalium  v.   Barnard,   1355. 

v.  Long  Island  R.  Co.,  22S5,  2333. 
McCann  v.  Hazard,  1003,   1007. 

v.  New    York    &    Q.    C.    R.    Co.. 
2693,  3695. 

v.  Sheeke,  4013,  4027. 
MacCarone  v.  Hayes,  4127. 
McCarragher   v.   Rogers,   2296. 
McCarron  v.   Cahill,  882,   909. 
McCarter,  Matter  of,   2952,   3951. 
McCarthy  v.  Crowley,  4002. 

v.  Innis,  2922. 

v.  McCarthy,    714,    752,    753,    755. 

v.  R.    G.    Packard   Co.,    4056. 

v.  Wright,   2947. 
McCartney  v.  Bostwick,  3387. 
McCarty     v.     Edwards,     1733,     1742, 
1768,   2159. 

v.  O'Donnell,    1079. 

v.  Parker,   816. 
McChain  v.  McKeon,   3087,   3122. 
McChesney   v.    Lansing,    4013. 
McClare  v.  Lockard,   306. 
McClave    v.    Gibb,     948,    2163,     2165, 
2710. 


McClean  v.  New  York  Press  Co.,  405, 

406. 
McCleary  v.   Edwards,   1759. 

v.  McCleary,   2578. 
McClellan  v.  Duncombe,  877. 
McCloskey    v.    New    York    &    N.    J. 

Bridge  Co.,   1680. 
McClosky    v.    Stewart,    3386,    3407. 
McCloud  v.   Meehan,    2S24. 
McClure  v.  Levy,  1346. 

v.  Niagara   County   Sup'rs,    2939. 

v.  Supreme  Lodge,  K.  of  H,  746. 

v.  Wilson,   1009. 
McColl   v.    Sun    Mut.    Ins.    Co.,    1728, 

1732. 
McComb  v.  Kellogg,   2968. 
McCombs  v.  Allen,  1508. 

v.  Becker,  3127. 
McConihe  v.  Palmer,   1932,   1941. 
McConkey  v.  Glen,  1332. 
McConnell   v.   Adams,   2040. 

v.  Manhattan    Const.     Co.,     3016, 
3021. 
McCooey    v.    Forty-Second    St.    &    G. 

St.   Ferry  R.   Co.,   2269. 
McCool  v.   Boiler,  773. 

v.  McNamara,  1625. 
McCoon  v.  White,  1800. 
McCorkle    v.    Herrmann,    829,    3297, 

3363,  3366. 
McCormack     v.      Coddington,      4142, 

4143. 
McCormick  v.  Kehoe,  3332. 

v.  McCaffray,  2322. 

v.  Pennsylvania     Cent.     R.     Co., 
123,  2239. 

v.  Sullivan,   983. 
McCosker  v.   Brady,    1657. 

v.  Smith,   1949. 
McCotter  v.  Hooker,  1728. 

v.  Jay,   3227,    3229. 

v.  Lawrence,  472. 
McCoun  v.  Dorsheimer,  3400. 

v.  New  York  Cent.   &  H.   R.   Co., 
728. 
McCourt  v.  Cowperthwait.   87  9. 
McCoy    v.    City    of    New    York.    665, 

2206. 
McCrackan  v.  Ware,  1560. 
McCracken  v.  Flanagan,  768,  3149. 
McCrea  v.    Chahoon,    998,    1005. 

v.  Cook,    3350. 

v.  Hopper,    984,    992. 

v.  New  York   El.    R.   Co.,   76. 
McCready  v.  Farmers'  Loan  &  Trust 
Co.,    2587. 

v.  Haight,    1784,    1936. 

v.  Lindenborn,    2026,    2031,    26S0, 
2681,  2690. 
McCredie  v.   Senior,   3307. 
McCredy  v.  Woodcock,   2820,  2S24. 
McCreery    v.    Ghormley,    1835,    1851, 

3834. 
McCue  v.  Tribune  Ass'n,  5S1. 
McCulloch   v.    Dobson,    2470. 

v.  Hoffman,    3202. 

v.  Norwood,    2075. 

v.  Vibbard,  2930. 
McCulloh  v.  Aeby  &  Co.,  543. 

v.  Paillard  Non-Magnetic  Watch 
Co.,   748. 
McCullough  v.   Carragan,   1422. 

v.  Colby,   1053,   3397. 


TABLE  OF  CASES. 


4265 


[references  are  to  pages.] 


McCullough    v.    Dobson,    2618,    2630, 
3004. 

v.  Pence,   1013,   1092. 
McCully  v.  Heller,  765,  772,  7S0,  781. 
McCutcheon  v.  Dittman,  256. 
McDermott  v.   Board  of  Police,    647. 

v.  Hennesy,   2969. 

v.  Yoelin,    3036. 
McDonald  v.  Bach,  483. 

v.  Brace,    2127. 

v.  Brass  Goods  Mfg.  Co.,  1889, 
2043,  2045. 

v.  Convis,    1295. 

v.  Davis,  990. 

v.  Edgerton,   81. 

v.  Edwards,  1001. 

v.  Garrison,    1814. 

v.  Green,   1065. 

v.  Holbrook,  C.  &  D.  Cont.  Co., 
4154. 

v.  Jaffa,    497. 

v.  James,  1615. 

v.  Johnson,    2335. 

v.  Kieferdorf,   1454,   1464,   3090. 

v.  Long  Island  R.   Co.,   2323. 

v.  Macdonald,   1963,   3420,  3632. 

v.  McLaury,  812. 

v.  Mallorv,    139. 

v.  Metropolitan  St.  Ry.  Co.,  2281, 
2283,  2285,  2297,  2320,  235S, 
2694. 

v.  Moore,   3101. 

v.  Morse,  4143. 

v.  Neilson.    3128,    3145. 

v.  Peet,  1897. 

v.  Wesendonck,  2228. 
McDonnell  v.  Blanchard,  531. 

v.  Buffum,   4015. 

v.  New   York   Cent.    &   H.    R.    R. 
Co.,   3624. 
McDougal  v.  Gray,  1892. 
MacDougall  v.  Hoes,   2842,   2877. 

v.  Sitcher,    3150,    3244. 

v.  Walling,  378,   980. 
McDowell  v.  Daniels,  2882,  2884. 

v.  Syracuse   L.   &  S.   Co.,    4162. 
Mace  v.  Mace,  784. 

v.  Scott,    2040. 
McElheny  v.   Minnepi,    1029. 
McElroy   v.    Baer,    1869. 

v.  Broklyn  Underground  R.  Co., 
2205. 

v.  Munford,      3732,      3747,      3754, 
3762,   3771. 
McElwain   v.   Corning,   798. 

V.  Erie  R.   Co.,   3844. 

V.Willis,   3390,   3408,    3670. 
McElwee    Mfg.    Co.    v.    Trowbridge, 

987. 
McEneroe  v.  Decker,  945. 
McEntyre     v.      Tucker,      1044,     2678, 

3916. 
McEvers  v.  Markler,  597,  2171,  2172, 

2866. 
MacEvitt  v.  Maass,   3666. 
McEvoy  v.  Appleby,   3402,  3410. 
McEwan    v.    Iiurgess,   3277,   3291. 

v.  Butts,   3229. 
McEwen    v.   Brewster,   3263. 

v.  Dimond,   2170,  2173. 
McEwens    v.    Public    Administrator, 

2081. 
McFadden  v.  Morning  Journal  Ass'n, 
2209. 


McFarlan  v.  Clark,  1917. 

v.  "Watson,    3920,    3924. 
McFarland   v.   Crary,    241. 

v.  Delaney,  1586. 
MacFarlane,  Matter  of,  2633,  2637. 
McFarlane  v.    Kerr,    463. 
McFarren   v.   St.   John,    1994,    1995. 
McGaffigan  v.   Jenkins,   2876. 
McGarrahan  v.  Sheridan,   4092,   4126. 
McGarry    v.    Buffalo,    2702. 

v.  New      York      County      Sup'rs, 
3S34. 
McGean  v.  MacKeller,   672,  680. 

v.  Metropolitan      El.      Ry.      Co., 
1050,  2073,   2076. 
McGilivray  v.  Standard  Oil  Co.,  2876. 
McGill  v.  Weill,  795,   3339. 
McGillicuddy    v.    Kings    County    El. 

Ry.  Co.,   1875. 
McGillis  v.   McGillis,   294. 
McGinley  v.  United  States  Life  Ins. 

Co.,  2231. 
McGinn  v.   Ross,   1475,   1480. 
McGinness  v.  City  of  New  York,  945. 
McGinnis  v.  City  of  New  York,  3  907. 
MacGinniss  v.  Amalgamated  Copper 

Co.,   4055. 
McGivney  v.  Childs,  3307. 
McGloin    v.    Metropolitan    Street    R. 

Co.,  2689. 
McGovern   v.    McGovern,   2953. 
MacGowan   v.    Duff.    2327. 

v.  Newman,    2605. 
McGowen  v.  Deyo,  1903. 
McGown    v.    Barnum,    4135,    4136. 

V.  Leavenworth,     882,     915,     938, 
1924. 

v.  Sandford,    3222. 
McGrath  v.  Alger,  2270,  2938. 

v.  Bell,    2230. 

v.  Hudson   River   R.    Co.,    2283. 

v.  Maxwell,   2842. 

v.  Metropolitan     Life     Ins.     Co., 
2322. 

v.  Pitkin,    1003,   1012. 

v.  Saver,  1383. 

v.  Third  Ave.  R.  Co.,  3905. 

v.  Walker,    2221. 

v.  Weiller,    4155. 
McGraw  v.  Godfrey,   1044. 
McGregor  v.   Ball,    1807. 

v.  Buell,    3922,   3966. 

v.  Comstock,    290,   3843. 

v.  McGregor,   1068,    2070. 
McGruer   v.   Abbott,    3689. 
McGuckin   v.    Milbank,    2761. 
McGuffln   v.    Dinsmore,    1776. 
McGuin  v.  Cace,   569. 
McGuiness    v.    City    of    New    York, 

1092. 
McGuinty  v.   Herrick,   3192,   3208. 
McGuire   v.    Bausher,   3185. 

v.  Bell  Tel.  Co.,  3876. 

v.  Hartford    Fire    Ins.    Co.,    2249. 

v.  Hudson,    3260,    3301. 

v.  Johnson,   2760. 

v.  Joslyn,   2217. 

v.  McGuire,    1808. 

v.  Now    York   Cent.    &    H.    R.    R. 
Co.,   2092. 

v.  People,   2245. 

v.  Schroeder,    3288. 
McGuire's  Estate,  In  re,  4063. 


1:266 


TABLE  OF  CASES. 


[REFERENCES   ARE   TO   PAGES.] 


M. 'H;irs   v.   Donelly,   2947. 

Mi.  lien  v.  Lamar  Ins.  Co.,  1161. 

McHenry    v.    Jewett,    1561. 

M,  II,  nry's    Petition     431. 

Maehin   v.   Lamar   Fire   Ins.  (  o.,  obbb. 

MCcHugh  v.  Astrophe,  1682,  18S4. 

MEachwirth,  Matter  of.  1652. 

Mdlhanney  v.  Magie,   1S36,  1851. 

M.llvaine     v.     Steinson,     2654,     2999, 

3659,    3714,    4059,    4061. 
Mcllwaine    v.    Metropolitan     St.     R. 

Co.,   2691. 
Melnerney  v.  Main,  70,  4049,  4050. 
Mclnnis     v.     Gardiner,     1840,     2083, 

2087. 
Mclnroy  v.   Benedict,    2592. 
Mclntire  v.  Wiegand,  679,  689. 
Mcintosh  v.  Ensign,   1709,  2111. 

v.  Mcintosh,  78,  1280. 
Mclntyre   v.    Borst,    683. 

v.  German  Sav.  Bank,  3040,  3603, 

3944,   3972. 
v.  Sanford,  3093,  3105,  3143,  3145, 

3152. 
v.  Strong,  2693,   2768,  3734. 
v.  Wynne,    2942. 
Mclver  v.  Hallen,   2656,   2705. 
Mclvor  v.  McCabe,  131,  202,   361. 
Mack  v.  American  Exp.  Co.,  816. 
v.  Austin,    2262. 
v.  Burt,    957. 
v.  Cohn,   3040. 
V.  Kitsell,  207. 
v.  Latta,    4047,    4113. 
v.  McCullock,    2993. 
v.  Stanley,    1623. 
McKane  v.   Brooklyn   Citizen,   964. 
v.  Democratic   General   Commit- 
tee of  Kings  County,  796. 
Mackay  v.  Bennington,   2609. 
McKay     v.      Harrower,      1471,      1473, 
1537. 
v.  Lasher,    2219,    2263. 
V.Lewis,    1314,   3619,   3839. 
v.  Marine    Ins.    Co.,    2026,    2027, 

2713. 
v.  Morris,  2121. 
v.  Reed,   1695. 
MacKaye  v.   Soule,    1567. 
McKeage   v.  Hanover   Fire  Ins.   Co., 

378 
McKean  v.  National  Life  Ass'n,  1529, 

1535. 
McKechnie  v.  McKechnie,  2  i  0. 
McKee  v.    Flaherty,   1654. 
v.  Jessup,    825. 
v.  Judd,  378. 
McKeen  v.  Fish,  2067,  3007. 
McKeever  v.   New  York  Cent.    &  H. 
R.   R.  Co.,   2285. 
v.  Weyer,    2697. 
MacKellar    v.    Farrell,    3772,    3781. 
V.Rogers,  2024,   2143,  2149,   2155, 
2157. 
McKelsey  v.   Lewis,   334,   1640. 
McKenna,  Matter  of,    598. 
McKenna  v.    Duffy,   3236. 
McKensie  v.  Farrell,  992. 
McKenster  v.  Van  Zandt,  2120. 
Mackenzie  v.  Hatton,   77. 

v.  L'Armoureux,    415,    416,    417. 
v.  Smith,   1365. 
McKeon   v.   Kellard,   2033. 
v.Lane,   1843. 


McKeon  v.  Sec,  2140,  21 44. 
McKeown  v.  Bank  for  Savings,  1864. 

v.  Officer,  2753,  3846. 
McKernan   v.    Robinson,    88. 
McKesson  v.  Russian  Co.,  59,  1087. 
Mackey  v.  Duryea,   1050,  2097. 

v.  New  York  Cent.   R.   Co.,   2693. 
McK  inlay     v.     Fowler,     1385,     1395, 

L516. 
McKinley  v.  Lamb,  2163. 

v.  Tucker,   3185. 
McKinney  v.  Collins,  759,  761,  766. 

v.  London,   2148. 

v.  McKinney,   860. 
McKinstry   v.    Edwards,    2873. 

v.  Smith,  2267. 
McKnight  v.  Devlin,   1092. 

v.  Dunlop,  2265. 
McKuskie      v.      Hendrickson,      2001, 

4037. 
McKyring  v.  Bull,  828,   944,  953,   954. 
McLachlin  v.  Brett,  2080,   2088,   2268, 

3711- 
McLain    v.    Mathushek    Piano    Mfg. 

Co.,    2913. 
McLaren  v.  Charrier,  222. 
v.  McMartin,  529,  532. 
McLaren's   Ex'rs   v.   McLaren,    611. 
McLaughlin,  Matter  of,  2890. 
McLaughlin    v.    City    of    New   York, 
2076. 
v.  Crawford,   2047. 
v.  Engelhardt,   1081. 
v.  Great  Western  Ins.  Co.,  376. 
v.  Kelly,  865,  871. 
v.  Mayor,     etc.     of     New     York, 

2083. 
v.  Smith,  3956. 
v.  Teasdale,    3230. 
v.  Washington  County  Mut.  Ins. 

Co.,   2697. 
v.  Webster,  2597,  2598. 
McLean,  Matter  of,  550. 
McLean   v.    Adams,    1748. 
v.  Cole,    2653. 
v.  Freeman,  3951. 
v.  Jephson,   14. 
v.  Julien  Electric  Co  ,  953. 
v.  Stewart,   2384,  2810. 
v.  Tompkins,   569,   2076. 
McLear  v.  Reynolds,  4  036. 
McLeod   v.   Moore,   767. 
McLoughlin  v.   Bieber,  804. 

v.  Consumers'  Brew.  Co.,  1402. 
v.  Naugle,   1442. 
McMahon    v.    Allen,    421,    425,    1052, 
1053,  1744. 
v.  Brooklyn    City    R.    Co.,    1781, 

1800. 
v.  Brooklyn   &  N.    Y.   Ferry   Co., 

2218. 
v.  Cook,   4132. 
v.  Harrison,    3989. 
v.  Mutual     Ben.     Life     Ins.     Co., 

3628. 
v.  New  York   &  E.   R.   Co.,   2391. 
v.  Town   of  Salem,  2257. 
McMann  v.  Brown,  2129,   4138. 
McManus  v.  Palmer,   2382. 

v.  Western   Assur.    Co  ,    538,   947, 

953,  2671,  2673,  2680,  2682. 
v.  Woolverton,    2320,   2325. 
McMaster,  Estate  of,  674. 
McMichael  v.   Kilmer,    569. 


TABLE  OF  CASES. 


4267 


[REFERENCES    ARE    TO    PAGES.] 


McMichael  v.  Knapp,   3087. 
McMonagle   v.   Conkey,    1733. 
McMoran   v.   Lange,    1074,   3940. 
McMullen  v.   Peart,   902. 

v.  Rafferty,    491,    530. 
McMurray  v.  Gage,   2369. 

v.  Gifford,    562,    S28,    845,    944. 

v.  McMurray,    2041. 
McNaier  v.   Manhattan   R.   Co.,  2217. 
McNally  v.   Rowan,   4152. 
McNamara  v.  Canada  S.  S.  Co..  3669. 

v.  Harris,  2077. 

v.  Keene,    1797. 

v.  Nolan,   1873,   1875. 

v.  Wallace,   4080. 
McNamee  v.  Tenny,  518,   522. 
McNaughton  v.  Osgood,  2164,  2722. 
McNeeley  v.  Welz,  3108 
McNeil  v.  Merriam,  1890,   1891,   1892. 
McNish  v.   Bowers,    2680. 
McNulta   v.   Huntington,    2068,    2087, 

2088. 
McNulty   v.    Mt.    Morris    Elec.    Light 
'  Co.,  2142,  2161,  4170. 

v.  Solley,   2111. 
McNutt    v.    Hilkins,    45. 
Macomber  v.  Bank  of  Batavia,  3139. 

v.  City   of  New   York,    814,    2789. 
McParland  v.  Bain.   1651. 
McPhall  v.  Ridout,  1957. 
Macpherson    v.    Ronner,    2630. 
McPhillips  v.    Fitzgerald,    2094. 
McQuade  v.  New  York  &  E.   R.  Co., 

2999,   3021. 
McQueen  v.   Babcock,   503,    1024. 

v.  New,    977. 
McQuigan  v.  Delaware,   L.   &  W.   R. 

Co.,   120,   1817. 
McRoberts  v.  Pooley,  1059,  1060. 
McShane  v.   Pinkham,   3107. 
McSkiman   v.   Knowlton,    1422,   3264. 
McSweeney  v.   Broadway   &   S.   Ave. 

R.    Co..    2217. 
McTaggart    v.    Putnam    Corset    Co., 

1401. 
McTeague  v.    Coulter,    471. 
McVean  v.  Scott,  2769. 
McVey  v.  Cantrell,   1069,   2960. 
McVicar  v.  Keating,  1995. 
McVickar   v.   Woolcot,    1764. 
McWhirter  v.   Bowen,   2763,   4168. 
Madden   v.   Arnold,    144. 

v.  Underwriting    Print.    &    Pub. 
Co.,  839. 
Maddock  v.  Stevens,  2887. 

v.  Van  Kleeck,  3715. 
Maders  v.  Lawrence,   444,   971. 

v.  Whallon,      1028,      1029,      1047, 
3385,    3409,    3410. 
Madge  v.   Puig,   1295,   1305. 
Madison  v.  Brower,  1606. 
Madison     Ave.     Baptist     Church     v. 

Baptist  Church  in  Oliver  St.  159. 
Madison  University   v.    White,   2159, 

2164,   2710. 
Madsen  v.    Slocevich,   605. 
Maeder  v.  Wexler,  2754,  4047. 
Magauran    v.    Tiffany,    905. 
Magee  v.  City  of  Troy,   2181. 

v.  Osborn,   2314. 
Magennis  v.  Scheid,  2568. 
Maggio,   Matter  of,   244. 
Magie  v.  Baker,   2390. 
Magnin  v.  Dinsmore,  1998. 


Magnolia  Anti-Friction  Co.  v.  Sing- 
ley,    826. 
Magnolia    Metal    Co.    v.    Drew,    2146. 

v.  Sterlingworth  Ry.  Supply  Co.. 
277,   3710. 
Magnus  v.  Buffalo  R.  Co.,  2720,  3866. 

v.  Trischet,   2664. 
Magovern  v.   Robertson,   2597. 
Magoverning  v.   Staples,  2347. 
Magown  v.   Sinclair,   2561. 
Maguire   v.    Durant.    2009. 

v.  Maguire,   2874. 
Mahaney  v.   Penman,   811. 
Mahar  v.   Simmons,  2696,  2743. 
Maher  v.   Carman,   3896. 

v.  Comstock,    663. 

v.  Garry,    1591,    2998. 

v.  O'Conner,  3247. 
Mahler  v.  Schmidt,   60,   67,  72,  410. 
Mahon  v.  City  of  New  York,  1029. 

v.  Mahon,  3957. 
Mahonev  v.  Adams,  425. 

v.  Allen,   3237. 

v.  Decker,    2339,    2340. 

v.  Dwyer,  2246. 

v.  Mahoney,    354. 
Mahony  v.  Clark,   501. 
Mahr  v.  Bartlett,   3867. 

v.  Norwich  Union  Fire  Ins.  Soc. 
421,    427,   1560. 
Mahro     v.     Greenwich     Sav.     Bank, 

1864,  1865. 
Maicas  v.  Leony,    2629,   2646,   2647. 
Maiello  v.  Maiello,  4089. 
Maier  v.  Rebstock,   351,   353. 
Maigille  v.  Leonard,  3258,  4177. 
Main   v.   Pender,    4093. 

v.Pope,   239,   589,    619. 
Mairs    v.     Manhattan     Real    Estate 
Ass'n    977. 

v.  Remseii,    353,    1946. 
Maitland  v.   Central  Gas   &  Electric 

Fixture  Co.,    141. 
Malam  v.  Simpson,  116,  2971,  2974. 
Malcolm  v.  Hamill,  3955. 

v.  Miller,    1566. 
Malcom   v.   Rogers,   812. 
Malkin    v.    Postal    Typewriter    Co., 

4148. 
Mallaeh  v.  Ridley,   2699. 
Mallet   v.    Girard,    818. 
Mallett    v.    Weybossett    Bank,    1595. 
Mallon  v.   Rothschild,   1447. 
Mallory,  Matter  of,   1650. 
Mallory  v.  Clark,  2880. 

v.  East  River  Ins.  Co..  3783. 

v.  Lamphear,    1084. 

v.  Travelers'    Ins.    Co.,    2291. 

v.  Wood,    2684. 
Malone    v.    Saints    Peter    &    Paul's 
Church,    2558,    2561. 

v.  Stillwell,   1006. 

v.  Third  Ave.  R.   Co.,   2329,  2334. 
Maloney  v.  Martin,   2262. 

v.  Nelson,    1360,    3927. 
Maloy    v.    Associated    Lace    Makers' 
Co.,  3017. 

v.  Dagnal,    3202. 
Manchester    v.    Braedner,    519,    522, 
523. 

v.  Herrington,    110,    2079. 
Manda   v.   Etienne,   1455. 
Mandel   v.   Gorman,   1549. 
Mander   v.   Bell,   2916. 


4268 


TABLE  OF  CASES. 


[REFERENCES    ARE   TO   PAGES.] 


Mandeville   v.   Avery,   48,   1055,  2151, 
3369,   3371,   3967. 
v.  Campbell,    3390,    341S. 
\ ,  Guernsey,    -'276. 
Manette  v.   Simpson,  3S6. 
Mang,    Mutter   of.    2043. 
.Manhattan     Brass    Co.     v.    Gillman, 

946,  3714. 
Manhattan  Co.  v.  Dunn,  16S4. 
•      v.  Evertson,  2604. 
v.  Lydig,    2056. 
v.  Phillips,    2263. 
Manhattan   Fire  Ins.   Co.   v.    Harlem 
River     Lumber    &    Woodworking- 
Co.,   2282. 
Manhattan  Gas-Light  Co.  v.  Barker, 

1562. 
Manhattan  Life  Ins.  Co.  v.   Alexan- 
der,   2310. 
Manhattan  R.  Co.  v.  Kent,  2969. 
v.    O'Sullivan,    3642,    3755. 
v.  Taber,    3801. 
v.  Youmans,   3033. 
Manhattan  Sav.  Inst.,  Matter  of,  16. 
Manheim  v.   Seitz,    4023. 
Manheimer  V.   Dosh,   558. 
Manice  v.   Gould,   1517. 

v.  Smith,  3353. 
Manken  v.  Pape,   3280. 
Mankleton  v.  Lilly,   2867. 
Manley  v.    Bonnel,   1830. 

v.  Insurance  Co.  of  North  Amer- 
ica   2643 
v.  Leggett,    1578,    1583,    1586, 
v.  Patterson,   1347. 
v.  Rassiga,   3373. 
Mann  v.  Barrows,  2273,  2331 
v.  Carley,    806. 
v.  Carter,    1445. 
v.  Chrestonulos,   4130 
V.  Fairchild,    264,    266,    439,    2765. 
v.  Marsh,    1000,    1017. 
v.  Provost,    2820. 
v.  Sands,    1287. 
v.  Sprout,    4153. 
v.  Swift,   4012. 
v.  Tyler,   236,   3023. 
Manneck  Mfg.  Co,  v.  Manneck,  1570. 
v.  Smith  &  Griggs  Mfg.  Co.,  226. 
Manning,  Matter  of,  236. 
Manning  V.  Benedict,  877. 
v.  Downing,   1927. 
v.  Evans,    3262,    3361. 
v.  Ferrier,    3805. 
v.  Gould,   683,   3767. 
v.  Guyon,    2782. 

v.  International  Nav.  Co.,   867. 
v.  Manning,    2617. 
v.  Mercantile     Trust     Co.,      571, 

2113. 
v.  Monaghan,   2354,   3113,   3370. 
v.  Port     Henry      Iron     Ore     Co., 

2366,  2784. 
v.  Pratt,  2072. 
Manning,  Bowman  &  Co.  v.  Keenan, 

26. 
Manolt  v.  Petrie,  465. 
Mansfield  v.  City  of  New  York,  3902. 

v.  Wheeler,    2692. 
Mantles  v.  Myle,   2625. 
Manton    v.    Poole,    1433. 
Manufacturers'    Bank    of    Rochester 
v.  Hitchcock,  1080. 


Manufacturers'    Nat.    Bank    v.    Hall, 

1438,    1444,    1445. 
Manufacturers'   &   Mechanics'   Bank 

v.   Cowden,   558. 
Manufacturers'   &  Traders'   Bank  v. 
C.  F.  Dare  Co.,  1606,  1615. 
V.  Koch,   2251. 
Mapes  v.   Brown,   795. 
v.  Knorr,    3677. 
v.  Snyder,    2063. 
Maples     v.    Mackey,     786,     787,     789, 

2852. 
Mappier  v.  Mortimer,  76. 
Marando  &  T.  A.  Gillespie  Co.,  3859. 
Marble  v.   Lewis,   1993. 

v.  Towman,    4020. 
Marcas  v.   Leony,  2770. 
Marcele    v.    Saltzman,    594. 
Marcellus,   Matter   of,    3625. 
Marckwald    v.    Oceanic    Steam    Nav. 

Co.,  2664. 
Marcly  v.  Shults,   2692. 
Marcus  v.   Aufses,    4148. 
Marden  v.   Dorthy,   3875,    3876. 
Maretzek  v.   Cauldwell,   2196. 
Margulies   v.    Damrosch,    1736,    3026, 

3970    3972. 
Marie 'v.    Garrison,    906,    995,    1002, 

1031,    1092,    2585. 
Marine  Bank  v.  Clements,  2668. 
Marine    Bank    of    Chicago    v.    Van 

Brunt,    3070,    3076. 
Marine    Nat.    Bank    v.    Bode.    1290. 
v.  National      City      Bank,      3S35, 

3854. 
v.  Ward,    1444,    1445,    1449. 
Mariposa  Co.  v.  Garrison,  1559. 
Mark   v.   Buffalo,    2984,   2989,   3048. 

v.  Hyatt,   1604. 
Markell  v.   Nester,   2083,   209S. 
Markes  v.  Epstein,   1993,  1994. 
Market    Nat.    Bank    v.    Pacific    Nat. 
Bank,     697,     778,     780,     3856,     3910, 
3913. 
Market     &     Fulton     Nat.     Bank     v. 

Jones,  999. 
Markey  v.  Diamond,  1319. 
Markgraf  v.    Klinge,   2245,   2246. 
Markham  v.   Markham,   1599. 
Markle  v.  Markle,   2037. 
Markoe  v.  Aldrich,   1727,   2690. 
Marks  v.  King,  2274. 

v.  La  Societe  Anonyme  De  L'Un- 

ion  Des  Papeteries,  732. 
v.  Murphy,  1670,  1683,  1867,  1688. 
v.  Reynolds,    2880,    2884. 
v.  Townsend,    64,    1091. 
Maroney  v.  Boyle,  3147,  3150. 
Marry  v.  James,   940. 
Mars    v.    Albany    Sav.    Bank,     1860, 

1863,   1867. 
Marselis  v.   Seaman,   723. 
Marsen    v.    Philadelphia    Arch    Iron 

Co.,    2560. 
Marsh  v.   Benson,   157. 
v.  Eastman,    1921. 
v.  Elsworth,    247. 
v.  Graham,   2967. 
v.  Hussey,   1647. 
v.  Kaye,  1027. 
v.  Kinney,    2595. 
v.  Lawrence,    3101. 
v.  Lowry,    1941,    1951. 


TABLE  OF  CASES. 


4269 


[references  are  to  pages.] 


Marsh  v.   McNair,  1044. 

v.  Nassau   Show   Case   Co.,    2026. 

v.  Pierce,    36S8,    3694. 

v.  Ridgway,   3228. 

v.  Standard  Structural  Co.,  16S4. 

V.  Village       of       Lansingburg-h, 
2939. 

v.  West,    Bradlev    &    Cary    Mfg. 
Co.,   177,   3633. 

v.  White,    3120. 

v.  Woolsey,    1811. 
Marshall  v.  Bover.   168,   2906. 

v.  City   of   Buffalo,    2285,    3917. 

v.  Davies.   2224,   2226. 

v.  De  Cordova,  82,   2145,  2150. 

v.  Hayward,   35. 

v.  Ling,  3266,  3288,  3302. 

v.  McGee,  2826. 

v.  McGregor,   1407. 

v.  Macv.   3913. 

v.  Meech,    259,    2648. 

v.  Sherman.  130. 

v.  Smith,    2636. 

v.  Watertown       Steam       Engine 
Co.,   1768. 
Marston  v.  Gould,  2268. 

v.  Johnson.    2644. 

v.  Swett,   926,    955. 
Marsullo  v.   Billotto,   2977. 

v.  Metropolitan   St.   R.    Co.,   2252. 
Martens  v.  Burton  Co.,   1080. 
Martin,  Matter  of.   286,   1895,   3992. 
Martin      v.      Aluminum      Compound 
Plate  Co,   1437. 

V.  Baust,   2682. 

v.  Bernheim,   889. 

v.  Bronsveld,    2756. 

v.  Central      Vermont      Ry.      Co., 
1422.    1480. 

v.  City  of  New  York,   1563. 

v.  Clews,   1794. 

v.  Crossley,    4090. 

v.  Erie      Preserving     Co.,      1077, 
1079. 

v.  Gould,    2131,    2565. 

v.  Gross,    542,    1320,    1342. 

v.  Hann,  2298. 

v.  Hilks,    2033. 

v.  Hodges,    2570,    2634,    2642. 

V.  Home   Bank,    1032. 

v.  Hyde,    529. 

v.  Kanouse,   612,  833,  3658. 

v.  Lott,    2813. 

v.  Lynch.    1278,    1343. 

v.  McCormick,    3022. 

v.  Mattison,    63. 

v.  New    Trinidad    Lake    Asphalt 
Co.,  1836,   4145. 

v.  New  York,  N.  H.  &  H.  R.  Co., 
2271. 

v.  Niagara  Falls  Paper  Mfg.  Co., 
2272. 

v   Pcct     S82 

v.  Piatt,    506,   2657,    2725,   2728. 

v.  Raffin,   736. 

V.   Rector,    I'.!)  1  0.    :::i]  2. 

v.  Rochester    German     Ins.     Co., 

911. 
v.  Sheridan,   1422,    3264. 
v.Smith.    1516,    2380. 
v.  Tar  box,    3947. 
v.  Vanderlip,    1344. 
v.  Wagener,  2761. 


Martin   v.   Windsor  Hotel   Co.,   2564, 
2567,  3628,  3633. 

v.  TV.   J.  Johnston  Co.,   3856. 

v.  Wood,    1366. 

v.  Woodhall,    737. 
Martin    Cantine    Co.    v.    TVarshauer, 

327. 
Martin's     Bank     v.     Amazonas     Co., 

4138,    4139. 
Martin's  Will,  Matter  of,  3991. 
Martine   v.   Albro,    1831. 

v.  Huyler,    3932. 

v.  Lowenstein,   108,   805,   2635. 
Marty    v.    Marty,     1560,     1571,     1593, 

3596. 
Marvin    v.    Brandy,    782. 

v.  Brewster  Iron  Min.   Co.,   3911. 

v.  Elwood,    1864. 

v.  Herrick,    3066. 

v.  Ing-lis,    2070. 

v.  Lewis,    459,   1923. 

v.  Marvin,   16.    293.   299,   303,    696, 
2737,   2780,   3873,   3978. 
Marx  v.   Ciancimino,    1513. 

v.  Gross,    1028,    2977. 

v.  Manhattan  Ry.   Co.,   510,  3000. 

v.  Pennsylvania    Fire     Ins.    Co., 
1829,  1840,   1848. 

v.  Spaulding,    3301,    3319,    3323. 

v.  Tailer,    60. 
Mascraft     v.     Van     Antwerp,     3141, 

3147. 
Mashbir,  Matter  of,   254. 
Mason,  Matter  of,  430,  432,  433,  2240 

2241,  2242,   2250. 
Mason  v.  Bidleman,  561. 

v.  Brown,    1934. 

v.  City  of  New  York,   501. 

v.  Clark,  868,  876. 

v.  Corbin,  2262,  2658,  27S4,  3692. 

v.  Dutcher,  961. 

v.  Evening  Star  Newspaper  Co., 
1693. 

v.  Hackett,  3274. 

v.  Henry,    494. 

v.  Hinds,  2243. 

v.  Jones,    3687,   3833. 

v.  Lambert,    1322. 

v.  Lee,    3317. 

v.  Libbey,  735,  1777,  1790. 

v.  Mason,  2280,  4111. 

v.  Moore,  562. 

v.  Sanford,    2082,    2083,    2096. 

v.  Sudani,   3129,   3145,   3150. 

v.  White,    3141,   3159,   3244. 

v.  Whitely,    1024. 
Mason    &   H.   Organ   Co.   v.   Pugsley, 

1731,   1745,  1766. 
Masons'  Supplies  Co.  v.  Jones,   2761. 
Masor  v.  Jacobus.   3724. 
Mass*oth    v.    Delaware    &    H.    Canal 

Co.,  2317. 
Masten  v.  Amerman,  3369. 

v.  Webb,    3106. 
Master   v.   Bowery   Sav.   Bank,    1865. 
Masters   v.    De  Zavala,    989. 
Masterson  v.  City  of  New  York,  873. 

v.  Townshend.  830,  1012. 
Matchett  v.  Lindberg,   2389,  2677. 
Matlur   v.   Eureka  Mower  Co.,   1967. 

v.  Hannaur,    1336,    1337. 

v.  Mather,    2882,    2884. 

v.  Parsons,    2261. 


4270 


TABLE  OF  CASES. 


[references  are  to  pages.! 


Mather's   Case,    236. 

Mathews    v.    Damainville,    4059. 

v.  Poultney,   2927. 

v.  Tufts,    1309,    1310. 
Mathis  v.   Vail,  607. 
Mat  hot    v.    North    ttiver   Bank,    1500, 
i  si;;;. 

v.  Triebel,  3652,  4063,   4065,   4169, 
4173. 
Matson  v.  Abbey,  2959. 

v.  Farm   Building  Ins.   Co.,   2289. 
Mattes  v.   Frankel,   2276. 
Matteson,  Matter  of,  3075. 
Matteson   V.   Hall,    4028. 

v.  Palser,    3SS2. 
Matthews    v.    American    Cent.     Ins. 
Co.,   2725. 

v.  Arnold,    4017. 

v.  Chicopee    Mfg.    Co.,    1054. 

v.  Cooper,   1643. 

v.  Delaware     &     H.     Canal     Co., 
2067. 

V.  Fiestel,    4014. 

v.  Gilleran,   780. 

v.  Matson,   3035. 

v.  Matthews,    955,    2578,    2596. 

v.  Meyberg,    2745. 

v.  Murchison,   1608.   1612,   2623. 

v.  Noble,    231.    2S10. 

v.  Studley,  158. 

v.  Tufts,  731,  794. 

v.  Whitney,   2227. 
Matthewson  v.  Thompson,  2999. 
Matthiessen   v.   Kohlsat,    954. 
Mattice   v.    Allen,    2262. 

v.  Shelland,    1950. 

v.  Wilcox,    962. 
Mattison  v.  Baucus,  3113. 

v.  Jones,    3996. 

v.  Smith,    944,    945,   1064. 
Maury    v.     American    Motor     Co , 
1461,   1515. 
Mautner  v.  Pike,  3023. 
Mawson,  Matter  of,  4176. 
Maxfield   v.    Taylor,    1493. 
Maxon  v.   Cain,  263. 

v.  Delaware,    L.    &    W.     R.    Co., 
961,    481. 

v.  Hall,   4019. 

v.  Reed,  4032. 
Maxwell,   Matter   of,   243,   3660,   3719. 
Maxwell  v.   Cottle,   290,  296,  445. 

v.  Farnam,   65. 

v  Pratt    958 
May,  Matter  of,   499,   634. 
May    v.    Cooper,    2831,    3126. 

v.  Georger,   27,  29. 

V.May,    3228. 

v.  Menton,   2740,  3886. 

v.  Moore,    2586. 

v.  Stern,   2300. 
Maybee  v.  Fisk,   405,  406. 

v.  Maybee,    2586. 
Myer  v.  Dean,  2299. 

v.  Ehrlich,   1814. 

v.  Friedman,    505. 

v.  Hardy,   141. 

v.  Liebmann,  2702. 

v.  Mc Walters,    1689. 

v.  Mayer,     871. 

v.  Noll,    1806. 

v.  Rothschild,    1349. 
Mayhew  v.   Howard,   291. 
Mayo  v.  Davidge,   971,   985. 


Mayo   v.   Knowlton,   844. 
Mayor  v.  Coffin,   1692,   1693. 

v.  Mayor,   1692. 
Mayor,    etc.,    of   City    of   New    York, 

Matter   of.    15. 
Mazet  v.  Crow,  2121,  2941. 
Mea  v.  Pierce,   1029,   1033. 
Mead   v.   Brockner.    4053. 

v.  Brunnemer,  3242. 

v.  Bunn,   3S68. 

v.  Dorland,    2814. 

v.  Jenkins,    504. 

v.  Langford,    183,    186. 

v.Mali,    1016. 

v.  Mallory,    2983. 

v.  Shea,   2304. 

v.  Smith,   3794. 

v.  Stratton,   3399. 

v.  Tuckerman,  3048,  3049. 
Meads  v.  Gleason,  896. 
Meagher  v.  Life  Union.  914. 
Meakim  v.  Anderson,   2712. 
Meakings   v.    Cromwell,    1842. 
Meaney  v.   Rosenberg,  271. 
Meany  v.  Rosenberg,   249. 
Mechanics'  Bank  v.  Hazard,  1364. 

v.  Minthorne,    2841. 

v.  Snowden,    3939. 
Mechanics'   Banking   Ass'n   v.   Kier- 

sted,   2971. 
Mechanics'    Sav.    Bank    v.    Carman, 

3898. 
Mechanics'     &     Farmers'     Bank     v. 

Smith,   2198. 
Mechanics'   &  Traders'  Bank  v.  Da- 
kin,    115,    1496,    3389,    3391. 

v.  Healy,    3323. 

v.  Loucheim,      543,      1449,      1451, 
1527. 
Mechl   v.    Schwieckart,    2909,   2910. 
Medbury   v.    Swan,    1052. 
Meech  v.   Brown,   4019. 

v.  Calkins,    562,   1735. 

v.  Loomis,   3201. 

v.  Stoner,    378. 
Meehan,  Matter  of,  501,  524. 
Meehan  v.  City  of  New  York,  490. 

v.  Figliuolo,  4078. 

v.  Harlam  Sav.  Bank,  952. 

v.  Judson,    2284. 
Meeker  v.  Claghorn,   379. 

v.  Remington  &  Son.  Co,  2999. 
Meekin  v.  Brooklyn  Heights  R.  Co., 

2070     4^  0  8  8 
Meeks'   v.     Meeks,     158,     4071,     4118, 
4121,    4122. 

v.  Vogel,    107S. 
Meeteer  v.  Manhattan  Ry.  Co.,  2318, 

2328. 
Megrath  v.   Van  Wvck,  3630. 
Mehesy  v.  Kahn,   1839. 
Mehl  v.  Vonderwulbeke,  3612. 
Mehrbach     v.     Partridge,     799,     800, 

816. 
Meigs  v.  Roberts,  448. 
Meinhardt    v.    Excelsior    Brew.    Co., 

4069. 
Meinrenken  v.  New  York  Cent.  &  H. 

R.   R.   Co.,   4167. 
Meise  v.   Doscher,   1704. 
Meislahn  v.  Hanken,  1666. 

v.  Irving  Nat.   Bank,    2664,   2666, 
3870. 
Melcher    v.    Fisk,    3082. 


TABLE  OF  CASES. 


4271 


[REFERENCES    ARE   TO   PAGES.] 


Melcher  v.  Kreiser,  386,  947. 
Meldon  v.  Devlin,   2808,   3914. 
Mellen,    Matter    of,    2261,    2572,    2610, 

2612. 
Mellen  v.  Hutchins,  1883. 

v.  Mellen,   636,   865,   2*156,   3666. 
Meltzer  v.  Doll,   3861. 
Melville    v.    Matthewson,     639,     645, 

2830 
Melvin  v.  "Wood,  879,  2597. 
Mendel  v.   Mendel,   3950. 
Mendello  v.  Rosati,   593. 
Mendelsohn    v.    Prankel,    879. 
Mendoza  v.    Rose,    4068. 
Menella   v.   Metropolitan   St.    R.    Co., 

4065. 
Mengis  v.   Fifth  Ave.   Ry.   Co.,   2215, 

2664. 
Mercantile  Nat.  Bank  v.  Corn  Exeh. 
Bank,    989. 
v.  Sire,  4140,   4166. 
Mercantile    Safe   Deposit   Co.    v.   Di- 

mon,    2926. 
Mercantile     Trust     Co.     v.     Atlantic 
Trust   Co.,    1013. 
v.  King's     County    El.     Ry.     Co., 
1650. 
Mercer  v.   Mercer,    3042. 

v.  Southern    Bank,    772. 
v.  Vose,   2595. 
Merceron  v.   Fowler,   2945. 
Merchant  v.    Sessions,    307. 
Merchants'  Bank  v.  Bliss,  480. 

v.  Thomson,    3237. 
Merchants'    Bank   of   New  Haven  v. 

Dwight,   1277. 
Merchants'    Bank    of    Rochester    v. 

Thalheimer,    3413. 
Merchants'  Exch.  Nat.  Bank  v.  Wal- 

lach,    2225,   2322. 
Merchants'  Ins.  Co.  v.  Hinman,  3223. 
Merchants'     Nat.     Bank     v.     Barnes, 
915. 
v.  Columbia   Spinning-   Co.,    1336, 

1437,   1439,  1441. 
v.  Hagemeyer,   428,   430,   431. 
v.  Sheehan,   1720,   1790. 
v.  Snyder,  972. 
v.  Tracy,  2165. 
Merchants'  &  Traders'  Nat.  Bank  v. 

City  of  New  York,  3947. 
Mercier  v.  Pearlstone,   655. 
Mereness  v.   Brenon,  3071. 
Meres  v.   Emmons,   4140. 
Merges  v.   Ringler,   3233,   3236. 
Merguelle  v.  Continental  Bank  Note 

Co.,  1848. 
Merino  v.   Munoz,    473,    491. 
Merkee    v.    City    of    Rochester,    806, 

807. 
Merriam  v.  Hill,  1420,  3331. 
v.  Wolcott,  696. 

v.  Wood    &    Parker  Lithograph- 
ing    Co.,     1402,     1403,     3873, 
3910,  3913. 
Merrick  v.  Brainard,  385. 
Merrill  v.  Allin,  3290. 
v.  Bischoff,  2936. 
v.  George,  732. 
v.  Green,   2679,  2816. 
v.  Grinnell,  378,  919. 
v.  McCloskey,  2160. 
v.  Near,  2993,   3195. 


Merrill  v.  Pattison,  4029. 

v.  Thompson,  1043. 
Merris  v.  Hunt,   4021. 
Merritt  v.  Arden,  2118. 

v.  Baker,    550,    609,   3068. 

v.  Carpenter,  1281. 

v.  Earle,  103. 

v.  Fowler,   2843. 

v.  Gouley,    833,    1070. 

v.  Jackson,  3157. 

V.  Judd,  3276. 

v.  Lyon,  2287. 

v.  Mayfleld,  2714. 

v.  Merritt,    489,    1647,    1649.    2627. 

v.  Millard,    985,   992. 

v.  Sawyer,  516. 

v.  Scott,  516. 

v.  Seaman,   921,  983. 

v.  Slocum,  189. 

v.  Sparling,  1650. 

v.  Thompson,     1364,     1566,     1705, 

2955. 
v.  Vigelius,  2565. 
v.  Wing.  3070. 
Merritt  &  Chapman  D.   &  W.   Co.  v. 

Tice   4055. 
Merry,'  Matter  of,   1654,   1656. 
Merry  v.  Hallett,   2798,   3163. 
Mersereau  v.  Mersereau,  2272. 
v.  Norton,  1407. 
v.  Pearsall,  2713. 
Mertage  v.  Bennett,  865. 
Mertens  v.  Fitzwater,  2913. 

v.  Mertens,    430,    4071. 
Mertian,   Matter   of,    282. 
Mertz  v.   Fenouillet,    1384. 
Mervin  v.  Rogers,   224. 
Mesick  v.  Smith,  2575. 
Messenger     v.     Fourth     Nat.     Bank, 
2277,  2714,  2735. 
v.  Holmes,  1938. 
Messer  v.  Aaron,  4094. 
Metcalf  v.  Baker,   2592,   2593. 
v.  Clark,  737,  794,  799. 
v.  Del  Valle,   3262,   3364,   3418. 
v.  Moses,  3429. 
v.  Stryker,  1365,  1368. 
Methodist    Book    Concern    &    Co.    v. 

Hudson,   3266,    3278,    3295,    3299. 
Methodist  Churches  v.  Barker,  1606, 

1607,  1612. 
Methodist       Episcopal      Church      v. 

Tryon,  630. 
Meton  &  Sons,  Thomas  F.,  v.  Isham 

Wagon  Co.,  892,  896. 
Metraz  v.  Pearsall,  952. 
Metropolitan  Addressing  &  Mailing 

Co.   v.  Goodenough,   2946,   2948. 
Metropolitan  Concert  Co.  v.  Sperry, 

2947. 
Metropolitan    El.    R.   Co.   v.    Duggin, 
3000,  3942. 
v.  Johnston,  2211. 
v.  Manhattan  Ry.  Co.,  1601,  1602, 
1603,  2754. 
Metropolitan       Exhibition       Co.       v. 

Ward,  1566. 
Metropolitan     Heights     R.      Co.      v. 

Schaefer,  2284. 
Metropolitan    L.    Ins.    Co.    v.    Bend- 
heim,  3247. 
v.  McCoy,  1937. 
v.  Meeker,  925. 


4272 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


Metropolitan  L.  Ins.  Co.  v.  Sanborn, 
16  15. 

Metropolitan   Nat.    Bank   v.   Bussell, 
937. 

v.  Sii-ret,  3886. 
Metropolitan  Trust  Co.  v.  McDonald, 
75. 

v.  Tonawanda    "Valley    &    C.    R. 
Co.,  972,  984,  1650. 
Metz  v.   Luckemeyer,   2215. 

v.  Metz,  4104. 
Metzeer  v.  Caw,  904,  1011,  1013. 

v.  Herman,  2290. 

v.  Karst,  12S5. 
Meucci  v.  Raudnltz,  1302. 
Meuer  v.  Phenix  Nat.  Bank,  4106. 
Meurer  v.  Berlin,   2757,   2825,   2872. 

v.  Brinkman,  1077. 
Mexico    City    Banking    Co.    v.    Mc- 

Intyre,  4132. 
Meyer  v.  Amidon,  3869. 
"  v.  Belden,   1291,   1319. 

v.  Bernheimer,  29S4. 

v.  Campbell,  2256. 

v.  Citv  of  New  York,  2874. 

v.  Clark,  2341. 

v.  Cullen,    2227,    2293,   2301,   2306. 

v.  Fiegel,  1091,  2698,  3907. 

v.  Halberstadt,  3110. 

v.  Haven,   2808. 

v.  Hibsher,  924. 

v.  Lent,  610. 

v.  McLean,    2714. 

v.  Mohr,   3399. 
.     v.  New   York    Cent.    &   H.    R.    R. 
Co.   2331. 

v.  North   River  Const.   Co.,   1043. 

v.  Press  Pub.  Co.,  2353. 

v.  Rasquin,  3011. 

v.  Seebald,  1626. 

v.  Suburban  Home  Co.,  2254. 

v.  Van  Collem,   1001. 
Meyer    Rubber    Co.    v.    Lester    Shoe 

Co.,  2997,   3004. 
Meyer's  Estate,  Matter  of,   4077. 
Meyers  v.  Becker,  3060. 

v.  Betts,  2600. 

v.  City  of  New  York,  1557. 

v.  Herbert,  3307,  3344. 

v.  Zucker,  4167. 
M.   Groh's   Sons   v.    Groh,    2267,    2277, 

3859 
Miaghan  v.   Hartford   Fire   Ins.   Co., 

2164. 
Miannay  v.  Blogg,   3637. 
Michaelis   v.   Compania  Metalurgica 
Mexicana,  1763. 

v.  Towne,  430. 
Michaels  v.  Abrahams,  3070. 

v.  Hain,  730. 
Michel  v.  Colegrove,  2656. 

v.  O'Brien,  1594. 
Michelsen  v.  Spies,  2171. 
Michelson  v.  Fowler,   3114,  3121. 
Michigan  Sav.  Bank  v.  Coy,  Hunt  & 

Co.,  4146,  4147. 
Mickes  v.  Tousley,  1416. 
Mickles  v.  Haskin,  3122. 
Micklethwaite  v.   Rhodes,  1903. 
Middlebrook  v.  Broadbent,  141,  2390. 

v.  Travis,  46. 
Middleton   V.  Ames,  1001. 
Midler  v.  Lese,   3805. 
Mierisch  v.  Mt.  Morris  Bank,  1837. 


Milbank  v.  Jones,  946,  947,  955. 
Milch   v.   Westchester   Fire   Ins.  Co., 

2265. 
Mildeberger  v.   Mildeberger,  2643. 
Mildenberg  v.  James,   1005. 
Milella  v.   Simpson,   4177. 
Miles  v.   Brown,   1469. 

v.  Loomis,  2215. 
Millady  v.  Stein,  2067. 
Millar  v.  Larmer,   2388. 
Millard  v.   Breckwoldt,   4174. 

v.  Jenkins.  4015. 

v.  Shaw,  3408. 

v.  Weaver,  3322. 
Millbank  v.  Broadway  Bank,  1457. 
Millburv  v.  Heitzberg,   1299,  1300. 
Millen  v.   Fogg,  2574. 
Miller,   Matter  of,   2782,   2790. 
Miller    v.    Adams,    3281,    3287,    3340, 
3915. 

v.  Adsit,  2944. 

v.  Altieri,  2390. 

v.  Barber,   2223,   2331,   2337. 

v.  Brenham,  447,  784. 

v.  Brooks,  1788. 

v.  Bush,  2935. 

v.  Carpenter,  4122. 

v.  Coates,  2942. 

v.  Collyer,  3241. 

v.  Eagle  L.  &  H.  Insurance  Co., 
3928. 

v.  Earle,'2885,  2890. 

v.  Edison  Elec.  Illuminating  Co., 
2141. 

v.  Farmers'   &   Merchants'   State 
Bank,  2665,   2676. 

V.  Ferry,   1455,   1460. 

v.  Fiss,  3650,  3858. 

v.  Hall,  3414,  3415. 

v.  Hooker,  561,  2560. 

v.  Hooper,  1422,  3263,  3264. 

v.  Hull,  350. 

v.  Huntington,  2983. 

v.  Johnson,  1054. 

v.Jones,   745,   760,   761,    3854. 

v.  Kent,  592,   1784. 

v.  King,   1029,   3955. 

v.  Kosch,   2883,  3104. 

v.  Lewis,  3168. 

v.  Loeb,  3632. 

v.  Lyons,  3333. 

v.  McCloskey,  946. 

v.  Magee,  531. 

v.  Mather,  1844. 

v.  Mestaniz,  1662. 

v.Miller,   262,   655,   2957,  3060. 

v.  Moeschler,  3146. 

v.  Montgomery,  2265. 

v.  O'Kain,  2785. 

v.  Oppenheimer,  543. 

v.  Parkhurst,  469. 

v.  Parks,  1345. 

v.  Perrine,   3720,    4000. 

v.  Piatt,  461. 

v.  Ring,  2129. 

v.  Rogers,  2081. 

v.  Scherder,   3200,    3202. 

v.  Shall,  276,  3597,  3690. 

v.  Sheldon,   937. 

v.  Union  Switch  &  Signal  Co.,  55. 

v.  Warren,  4074. 

v.  White,  1083,  2789. 

v.  Winchofer,   943,   954. 

v.  Wood,   477,   495. 


TABLE  OF  CASES. 


4273 


[references  are  to  pages.] 


Miller  v.  Woodhead,  93,  2960,  3203. 

v.  Woodworth,  4012. 

v.  Wright,  3236. 

v.  Young-,  2069. 
Millerd  v.  Thorn,  2205. 
Milligan  v.  Brophy,  1942. 

v.  Cottle,  3776. 
Miliken  v.   Dart,  1399,   1403,   1411. 

v.  Selye,  536. 

v.  Thomson,  3268,  3289,  3643. 

v.  Western   Union   Tel.   Co.,    824, 
1002. 
Milliman  v.   Rochester  Ry.  Co.,  2332. 
Milling-ton  v.  Fox,  3306. 
Millis  v.  Pentelow,  3373. 
Millius  v.  Shafer,  539. 
Mills  v.  Bliss.   928. 

v.  Chapman.  2128. 

v.  Corbett,  714,  1386. 

v.  Davis,  490,  3135. 

v.  Forbes,  3743. 

v.  Garrison,  54. 

v.  Hicks,  3185. 

v.  Hildreth,  1366. 

v.  Hoag,  2753. 

v.  Husson,  159. 

v.  Martin,  617. 

v.Mills,    439,    443,    468,    471,    474, 
489,   500,    2931. 

v.  Parkhurst,  42. 

v.  Rodewald,   1342,   1366. 

v.  Ross,  3012. 

v.  Shult,  3998. 

v.  Stewart,  272,  3668,  3717. 

v.  Thursby,   574,   1920. 

v.  Watson,   3007. 
Millspaugh  v.  Mitchell,  3102. 
Miln  v.  Vose,  1078. 
Milner  v.  Green,  1365. 
Milton     v.     Richardson,     2600,     2607, 

2608. 
Minck  v.  Levey,  1437. 
Miner  v.   Baron,   1031. 

v.  Beekman,    458,   459,   468. 

v.  Edison  Elec.  Illuminating  Co., 
2664. 

v.  Gaivanotype    Engraving    Co., 
1673. 

v.  Gardiner,  1841. 
Ming  v.   Corbin,    2312. 
Mingay  v.  Hollv  Mfg.  Co.,  3011. 

v.  Lackey,  2067. 
Mingst  v.  Bleck,   945. 
Minick  v.  City  of  Troy,  2940. 
Minners   v.   Smith,   4106. 
Minor  v.  Betts.  2044. 

v.  Garrison,  1955. 

v.  Gurley,  1486. 

v.  Terry,  1596,  1598. 

v.  Webb,  1593. 
Minrath    v.    Teachers'    Land    &   Imp. 

Co.,   1662. 
Minto  v.   Bauer.   298. 
Minton  v.  Home  Benefit  Soc,  1045. 
Minturn  v.  Seymour,   1593. 
Minzesheimer  v.  Bruns,  925,  956. 

v.  Mayer,  1577. 
Misland  v.   Boynton,   2258,  2259. 
Mission  of  the  Immaculate  Virgin  v. 

Cronin,  463. 
Missouri,   K.   &  T.   Ry.   Co.  v.   Union 

Trust  Co.,  37. 
Mitchell,  Matter  of,  16,  3897. 

N.  Y.  Prac.  —  268. 


Mitchell  v.  Allen,   644,   1058. 

v.  Barnes,   1625. 

v.  Borden,  2305. 

v.  Bunch,  51. 

v.  Bunn,  1028. 

v.  Carter,  2701. 

v.  Clary,  647. 

v.  Cody,  955. 

v.  Dick,  1899. 

v.  Ehle,  2352. 

v.  Hall,  3023. 

v.  Hinman,  1477. 

v.  Lane,  29  98. 

v.  Metropolitan    El.    Ry.   Co.,    56. 

v.  Miller,  955. 

v.  Mitchell,  870. 

v.  Montgomery,  1738. 

v.  Oliver,  2559. 

v.  Piqua  Club  Ass'n,  282. 

v.  Roulstone,  2270. 

v.  Rouse,  2695,  2721. 

v.  Thorne,  994,   998,   1001. 

v.  Turner,  2369. 

v.  Van  Buren,  2891. 

v.  Vermont     Copper     Min.      Co., 
2010. 

v.  Village  of  White  Plains,  2557. 

v.  Watkins,  3999. 

v.  Westervelt,  2943,  2983. 
Mitchell's  Case,  1969,  3336. 
Mitnacht  v.  Cocks,  3151. 
Mittendorf    v.    New    York    &    H.    R. 

Co.,  958. 
Mittenthal   v.   Rabinowitz,   1671. 
Mittnacht  v.   Kellermann,   372  9. 
Mix  v.   Andes  Ins.  Co.,   560. 

v.  Brisban,  2034. 
Mixer  v.  Kuhn,   1946. 
Mixsell  v.  New  York,  N.  H.  &  H.  R. 

Co.    2297. 
M.  J. 'Taylor  &  Co.  v.  Asiel,  4096. 
Moak  v.  De  Forrest,   1337. 

v.  Hayes,  3740. 
Moat  v.  Holbein,  338. 
Mobile   Fire   Dept.    Ins.    Co.    v.    Par- 
sons, 2227. 
Moench's  Estate,  Matter  of,   4073. 
Moffat  v.  Judd,  2580. 

v.Moffat,   2144,   2150,   3634. 

v.  Mount,  2144. 
Moffatt  v.   Bailey,   2280. 

v.  Fulton,   1325. 
Moffett  v.  Deom,  2001. 
Moffett,    Hodgkins   &    Clarke   Co.    v. 

Peoria  Water  Co.,  2126. 
Mohawk     Bank     v.     Atwater,     3142. 

3143. 
Mohr  v.  Dorschel,  3691,  3693. 
Mohrmann  v.  Bush,  2590. 
Moir  v.  Brown,  1908. 
Moissen  v.  Kloster,  2596. 
Mojarrieta    v.    Saenz,    551,    663,    771, 

1387,   1389,   1452. 
Moller  v.  Aznar,  1319. 

v.  Duryee,  3854. 

v.  Tuska,  45. 

v.  Wells,  3333. 
Mollineaux   v.    Mott,    3086,    3185. 
Molloy  v.  Lcnnon,  751. 
Moloney  v.  Dows,   887,  890. 
Molony  v.   Dows,   115,   2723. 
Moloughney      v.      Kavanagh,      1318, 
2128. 


4274 


TABLE  OF  CASES. 


|  KKIKKI'.NCT.S    AKK    TO    PACES.] 


Molson's     Hank     v.     Marshall,     363, 

1929. 
Monahan  v.  Fitzpatrick,  3365. 
Momla   v.   Wells.    Knrgo  &  Co.,  135. 
Mum, ll   \.  Cole,   2107. 
Monette  v.  Chardon,  1385,  1449,  1517. 
Monigan  v.  Brie  Et  Co.,  4045,  4128. 
Moniol   v.  Jackson,  1034,  4118. 
Monitor  Milk  Pan  Co.  v.  Remington, 

:;;,1N- 
Monnet    v.    Merz,    3001,    3666,    3667, 

;:m;t. 
Monolithic    Drain    &   Conduit   Co.    v. 

Dewsnap,   3367,  3368. 
Monroe  v.  Button,   1424,   1430. 
v.  Doyglass,  2314. 

v.  Upton,  3191. 

V.  White,  4010,  4018,  4034. 
Monroe's  Estate,  2217. 
Montague    v.     Jewelers    &    Trades- 
men's Co.,  430. 

v.  Worstell,  1720. 
Montanye  v.  Montgomery,  984. 
Montefeiore  v.  Favilla,  3749. 
Montgomery  v.  Boyd,   763,  775,  3389, 
:-!4  35,   3915,    4090. 

v.  Daniell,  1688. 

v.  Ellis,  709,  2821. 

v.  Knickerbacker,  1721. 

v.  Odell,  1894,  1906. 
Montgomery  County  Bank  v.  Albany 

City  Bank,  1082,  2111,  3943. 
Montrait  v.  Hutchins,  585. 
Montrose     v.      Wannamaker,      1829, 

1843,   1844,   1853. 
Moodv  v.  Dibbey,   387. 

v.  Osgood,  2326,   2337. 

v.  Pomeroy,   2340,   2351. 

v.  Steele,  971. 

v.  Townsend,  2884. 
Mook  v.   Parke,    2216. 
Mooney  v.   British   Commercial  Life 
Ins.  Co.,   1642. 

v.  Byrne,   468,    473,    3626. 

v.  La  Follette,    1290. 

v.  Mayor,  1682. 

v.  New    York    El.     Pv.     Co.,     425, 
2074,  2099. 

v.  Rverson,    632,    891. 

v.  Valentine,  4121.. 
Moore,  Matter  of,  108. 
Moore  v.  American  L.  &  T.  Co.,  3917. 

v.  Appleby,  3010. 

v.  Batten,  2343. 

v.  Calvert,  1320. 

v.  City  of  Albany,  114. 

v.  Cockroft,  2977. 

v.  Cooley,  1877. 

v.  Duffy,  3366. 

v.  Empie,   3349,  3359. 

v.  Encyclopaedia         Brittannica 
Co.,  4145. 

V.Hamilton,  2091,  2556. 

v.  Higgins,  1645. 

v.  King,  881. 

v.  Littel,  3139. 

v.  McClure,  825. 

v.  McKibbin,  1033. 

v.  McKinstry,   378,   2071. 

v.  McLaughlin,  514. 

v.  Meacham,  2318,  2319. 

V.  Merritt,  635. 

V.  Monell,   1005. 


Moore  v.  Monumental  Mut.  Life  Ins. 
Co.,  4088. 
v.  New    York    El.    R.    Co.,    2221, 

2728,  2734,   2909,  3899. 
v.  Oviatt,  2726. 
v.  Pentz,  1827. 
v.  Pillsbury,  1947. 
v.  Pitts,  2798. 
v.  Potter,  1641. 
v.  Robertson,  379. 
v.  Smith,  334. 
v.  Taylor,    307,     311,    1633,     2584, 

3258,  3298. 
v.  Trimmer,  4028. 
v.  Westervelt,    1477,    2283,     2904, 
3118. 
Moores  v.   Townshend,   2391. 
Moorhead  v.  Webster,   2707. 
Moosbrugger  v.  Kaufman,   2923. 
Mora  v.  McCredy,   1837. 

v.  Sun    Mut.    Ins.    Co.,    929,    2752, 
2901. 
Moran  v.  Conoma,  920. 
v.  Darcy,  1422. 
v.  Helf,  893,   898. 

v.  Long   Island   City,    2850,    2851. 
V.  McClearns,  2318. 
v.  Vreeland,  1845. 
Morange  v.  Meigs,  2599. 
v.  Mudge,  396. 
v.  Waldron,  1288. 
More  v.  Bennett,  2066. 
v.  Rand,  971. 
v.  Thayer,  714,  2081. 
Morehouse   v.    Brooklyn   Heights    R. 
Co.,  4064. 
v.  Yeager,   637,   2337. 
Morel  v.   Garelly,   1052,   1054,   1058. 
Moreland  v.   Sanford,  598. 
Morell  v.   Gould,   2034. 
Morenus  v.   Crawford,   2070. 
Morewood  v.  Curtis,   1505. 
Morey,  Matter  of,  3081. 
Morey  v.  Ford,  994. 

v.  Safe  Deposit  Co.,  1081. 
V.  Tracev,   3780,   3781. 
Morgan,  Matter  of,  2265. 
Morgan  v.  Avery,  1397,  1524. 
v.  Bennett,  1066. 
v.  Bucki,  923. 
v.  Fillmore,  1862. 
v.  Fullerton,  3243. 
v.  Holladay,   3131,  3146. 
v.  Leland,  1022. 
v.  Morgan,  1831,  1972,   1980. 
v.  Potter,  1636. 
v.  Regensberger,  1286. 
v.  Skidmore,    44,   2958. 
v.  Stevens,  2599. 
v.  Taylor,   2643. 
v.  Turner,  3150. 
v.  Von  Kohnstamm,  3295. 
Morganstern  v.  Endelman,  605. 
Morgenthau  v.  Walker,  2557. 
Mori  v.  Pearsall,   233. 
Moriorty  v.  Bartlett,  2066,  2070. 
Moritz  v.  Kaliske,  1496. 
Morley  v.  Green,  577. 
Morman    v.    Rochester   Mach.    Screw 

Co.,  3917. 
Morrell  v.   Kimball,   784,  790. 

v.  Waggoner,  1332. 
Morrill  v.   Kazis,  861,  864. 


TABLE  OF  CASES. 


4275 


[REFERENCES    ARE    TO    PAGES.] 


Morris,   Matter  of,    340. 
Morris    v.     Atlantic    Ave.    Ry.     Co., 
2259. 

v.  Budlong,  971. 

v.  Chamberlin,  988. 

v.  City  of  New  York,  190. 

v.  Crawford,  2132. 

v.  Fowler,  4101. 

v.  Harburger,  4165. 

v.  Hiler,  1649. 

v.  Kahn,  2874. 

v.  Knox,  1697. 

v.  Matthews,    1797,   1801. 

v.  Morange,  662,  2753,  3721,  3723. 

v.  Mowatt,  3241,   3431. 

v.  Murray,  2268. 

v.  New  York  City  R.  Co.,  4159. 

v.  Press  Pub.  Co.,  4062. 

v.  Rexford,  48. 

V.  Slatery,'2172. 

v.  Sliter,  3027. 

v.  Talcott,   1289,  1290,  1291,  1326. 

v.  Van  Voast,  479. 

v.  Wadsworth,  2223. 

V.  Wells,  2262,   2617,  3S64. 

v.  "Wheeler,  2926. 
Morris   European   &   American    Exp. 
Co.   v.   Merchants'    European    Exp. 
Co.,  1559. 
Morrison  v.  Currie,   1766. 

v.  Garner,  1290. 

v.  Horrocks,  2561,  2562. 

v.  Tde,  2120,  2964. 

v.  Lawrence,  2627. 

v.  Lester,  2949. 

v.  L'Hommedieu,  2766. 

v.  McDonald,  1811. 

v.  Metropolitan   El.    Ry.   Co.,  169, 
2553,  2809. 

v.  Metropolitan    Telephone    Co., 
2282. 

v.  Moat,  323. 

v.  Morrison,  3689. 

v.  National  Rubber  Co.  772. 

v.  New  York  El.  R.  Co.,  3652. 

v.  New    York    &    N.    H.    R.    Co., 
2686,  2768. 

v.  Smith,  1680. 

v.  Sturges,  1842. 

v.  Van  Benthuysen,   2559. 

v.  Watson,  544,  893. 
Morrissey  v.  Leddy,  68,   74. 

v.  Westchester      Elec.      R.      Co., 
2697. 
Morrow  v.   McMahon,   2626. 
Morse  v.  City  of  Troy,  1880. 

v.  Cloyes,  1766. 

v.  Goold,  448,  1416. 

v.  Grimke,  1738. 

v.  Press  Pub.  Co.,   1015,   1687. 
Morss  v.  Hasbrouck,  674,  2997,  3732. 

v.  Purvis,    3167,   3173. 

v.  Salisbury,  2924. 
Morten  v.  Domestic  Tel.  Co.,  1886. 
Mortimer  v.  Chambers,   473,   1093. 

v.  Nash,  3659. 
Morton  v.  Chesley,  1277,  1318. 

v.  Palmer,  2842,  2843. 

v.  Weil,   60,  3413. 
Moser  v.  City  of  New  York,  3854. 

v.  Cochrane,  975. 

v.  Polhamus,  1595. 


Moser    &    H.    Malting-    Co.    v.    Law- 
rence,  1334,   1343. 
Moses  v.   Banker,  580. 

v.  Hatch,  3857. 

v.  McDivitt,    264,    3939. 

v.  Newburgh    Electric    Ry.    Co., 
1S00. 

v.  Waterbury    Button    Co.,    1330, 
1364,  1506. 
Moshein  v.  Pawn,   876. 
Mosher  v.  Campbell,  183. 

v.  Hevdrick,    538,    539,    548,    2S85, 
2887. 

v.  People,  1319. 
Mosher's  Estate,  Matter  of,  3889. 
Moskowitz      v.      Hornberger,      2296, 

3022. 
Moss  v.   Burnham,   2162. 

v.  Cohen,  62.  1000. 

v.  Gilbert,  352,   1931. 

v.  Priest,  2355,  2356,  2360. 

v.  Wittemann,  1092. 
Mossein  v.  Empire  State  Surety  Co., 

3774. 
Motley  v.  Pratt,  69,  76. 
Mott,  Matter   of,    283,    611. 
Mott  v.  Burnett,  949. 

v.  Coddington,  352,  360. 

v.  Consumers'      Ice      Co.,      1835, 
1840,   2968,   2970. 

v.  Davis,  2883,   2885. 

v.  De   Nisco,   4109,   4110,   4116. 

v.  Lansing,  3725. 

v.  Mott,  2068,  3235. 

v.  Union   Bank,    1316,   1341,    2877. 

v.  United  States  Trust  Co.,  1563. 
Mottram  v.  Mills,  626. 
Moulton  v.  Beecher,   1939,  1949,  3007. 

v.  Bennett,  249. 

v.  Cornish,   2753,   3610. 

v.  De  Ma  Carty,  3404. 

v.  Moulton,  739. 

v.  Townshend,   2983. 
Mount  v.   Mitchell,   3835. 
Mt.    Sinai   Hospital  v.   Hyman,    2619. 
Mowatt  v.  Carrow,  3951. 
Mowbray  v.   Gould,   2245. 

v.  Lawrence,   1564. 
Mower  v.  Kip,  469. 
Mowrey  v.  Walsh,  3133. 
Mowry  v.  Sanborn,   542. 
Moyer    v.    Moyer,    3255,     3279,    3351, 
3360,  3361,  3603,  3716. 

v.  New    York   Cent.    &   H.    R.    R. 
Co.,  2391. 
Moza  v.  Sun  Mut.  Ins.  Co.,  2752. 
Muehlfeld  &  Havnes  Piano  Co.,  Mat- 
ter of,  3100,  3101. 
Mueller  v.  Tenth  &  Twenty-third  St. 

Perry  Co.,   867,  2263. 
Muglia  v.  Erie  R.  Co.,  4117,  4137. 
Muhlenbrinck  v.  Pooler,   2648. 
Muir  v.  Leitch,  3105,  3164,  3165,  3178. 
Muldoon  v.  New  York  Cent.  &  H.  R. 
R.   Co.,   4142. 

v.  Pierz,  3339. 

v.  Pitt,   3683,  3902,  3979. 
Muldowney    v.    Morris   &   E.    R.    Co., 

'.t  l'T. 
Mulford  v.  Gibbs,  3263,  3264. 
Mulliado    v.    Brooklyn    City    R.    Co., 
2217. 


4276 


TABLE  OF  CASES. 


|  BEFEEENCES    ARE   TO   PACES.] 


Mulkins  V.   Clark,   724,   S15. 
Mulks  v.  Allen,  3237. 
Mull  v.  Ingalls,  4014. 
Mullen   v.   Christian,   2195. 

v.  Cuinn,    2950. 

v.  Martin,  1577. 
Muller  v.  Bammann,  1874. 

v.  Bayard,  2909. 

v.  Bush  &  Denslow  Manufactur- 
ing Co.,  867. 

v.  Ba lie,   1053. 

v.  Hall,   3262. 

v.  Bevy,  1797. 

v.  Muller,   1039,   1040. 

v.  Perrin,  1321. 

v.  Wahler,  425. 
Mulligan  v.  Cannon,  271. 

v.  Erie  R.  Co.,  4045,  4092. 

v.  Metropolitan       St.       Ry.       Co., 
2209. 

v.  Third  Ave.  R.  Co,  2253. 
Mullin  v.   Kelly,    2576. 
Mullins    v.    Metropolitan    Bife    Ins. 

Co.,  743. 
Mumford  v.  Church,  1721. 

V.  Murray,  273. 

v.  Sprague,  2876. 
Mumper  v.  Rushmore,  3120. 
Mundorff  v.  Mundorff,  2646. 
Mundt   v.   Glokner,    2070,    2091,    2092, 

3619,  3704,   3706,   3707. 
Mungall  v.  Bursley,  871,  873. 
Munger  v.  Shannon,  907,  1070,  1074. 
Munn,  Matter  of,   3615. 
Munn  v.   Barnum,   994,  1078,  1081. 
Munoz  v.  "Wilson,  3854. 
Munro  v.  Merchant,  462. 

v.  Smith,   2754,   3014. 

v.  Tousey,  2928. 
Munsell  v.  Munsell,   3225. 
Munson,  Matter  of,  4057,  4083. 
Munson   v.    Curtis,    2333,    2901,    2904, 
4038. 

v.  Munson,  2127. 
Munzinger  v.  Courier  Co.  796. 
Muratore  v.   Pirkl,   4163,   4167. 
Murden  v.  Priment,  977. 
Murdock  v.  Adams,  3028. 

v.  International     Title     &     Trim 
Co.,  233. 

v.  Jones,  3720. 

v.  "Waterman,  529. 
Murphv  v.  Allerton,   2775. 

v.  Baldwin,  1396. 

v.  Callan,  358. 

v.  Central   Park,   N.   &   E.    River 
R.  Co.,   2692. 

v.  Davis,  300. 

v.  Dickinson,  3630. 

v.  Fernandez,   1277,  1290. 

V.  Gold   &   Stock    Tel.    Co.,    2008, 
2010,    3044. 

v.  Hall,  133,  1473. 

V.  Hays,  2664. 

v.  Hopper,  2211. 

v.  Hull,  1384. 

v.  Interurban    St.    R.    Co..    2741, 
2743. 

v.  Jack,  1436,  1438. 

v.  Kelly,  4084. 

v.  Kron,   2281,  2362. 

v.  Bong  3906. 

v.  McQuade,  977. 


Murphy    v.     Manhattan     Brass    Co., 
1SS9. 

v.  Naughton,  76. 

v.  New    York    Cent.    &   H.    R.    R. 
Co.,   1768. 

v.  Salem,  138,  139. 

v.  Shea,  786. 

v.  Travers,  1893. 

v.  Tripp,  3128. 

v.  Whitney,  380. 
Murphy's  Will,  Matter  of,   3985. 
Murr  v.  Western  Assur.  Co.,  2287. 
Murray,  Matter  of,   251. 
Murray  v.  Babbitt,  2390. 

v.  Berdell,    3909,    3911,   3912. 

v.  Bethune,  2013. 

v.  Bininger,  3194. 

v.  Cantor,  1644. 

v.  Coster,   497. 

v.  Fox,  2274. 

v.  Gerety,  204. 

v.  Great  Western  Ins.  Co.,   1756. 

v.  Hankin,   1444. 

v.  Hathaway,  3847. 

v.  Hay,   403. 

v.  Hefferan,   549. 

v.  Hendrickson,   1647,   2950,  2951. 

v.  Jones,  3922. 

v.  Kirkpatrick,   546,   1735. 

v.  Knapp,   1563. 

v.  Mabie,    865,    874. 

v.Marshall,  2666. 

v.  New  York  Bife  Ins.  Co.,  2205, 
2356. 

v.  Usher,  2391. 

v.  Vanderbilt,    745,    814. 
Murray's   Estate,   Matter   of,    3914. 
Murtagh  v.  City  of  New  York,  4105. 

v.  Dempsey,   4022. 
Murtha    v.    Curley,    927,    2765,    2918, 

3409    3961 
Muscott   v.    Runge,    1882,    1979,    1980, 
2982,  2983. 

v.  Woolworth,   3107. 
Muser  v.  Bissner,   1390. 

v.  Miller,   1306,   1307. 
Musgrave  v.  Sherwood,  1605,  3013. 

v.  Webster,   1010. 
Musgrove  v.  City  of  New  York,  952. 
Mussen   v.   Ausable   Granite   Works, 
160,  361,  1928. 

v.  White,   2287. 
Mussina  v.  Belden,  129,   349. 

v.  Stillman,   1078. 
Mussinan  v.  Hatton,  1022,  1027. 
Mutual  Bank  v.  Burrell,   2078. 
Mutual  Bife  Ins.  Co.  v.  Belknap,  569. 

v.  Bronson,  3223,  3224. 

v.  Cranwell,    2640. 

v.  Hillmon,   1700. 

v.  Hoyt,    3718. 

v.  Kopper,   3222. 

v.  Kroehle,    2107. 

v.  O'Donnell,   2829. 

v.  Robinson,      991,      3751,       3752, 
3756. 

v.  Ross,  720. 

v.  Toplitz,    944. 
Mutual  Boan  Ass'n  v.  Besser,  4121. 
Mutual  Reserve   Fund  Bife  Ass'n  v. 

Patterson,    1838,    1845. 
Myer  v.  Abbett,  628. 

v.  Belden,   1276. 


TABLE  OF  CASES. 


4277 


[REFERENCES   are  to  pages.] 


Myer  v.  Brooklyn  City  R.  Co.,  2316. 

v.  Thomson,    3405. 
Myers  v.  Albany  Ry.  Co.,  867. 

v.  Caffe,   1345. 

v.  Dean,   2349,    3832. 

v.  Gerrits,  897. 

v.  Janes,  3313. 

v.  Kelsey,   3191. 

v.  Machado,  829. 

v.  Merchants'      National      Bank, 
1564. 

v.  Metropolitan  El.   R.  Co.,   1051, 
1058,    1059,    1060. 

V.Myers,    1415.    1641,    2033. 

v.  Riley,   196,   3628,   3646. 

v.  Rosenback,     991,     1021,     1051, 
3704. 

v.  Shupeck,  1284. 

v.  Village       of       Lansingburgh, 
1957. 

v.  Wheeler,  972. 
Mygatt  v.   Coe,   3872. 

v.  Garrison,  561,  1735. 

v.  Wilcox,   2971. 
Mynard  v.    Syracuse,   B.   &  N.   T.   R. 

Co.,  118. 
Myres  v.  DeMier,  128. 

v.  Myres,  3714. 
Myres'  Case,  3351. 
Myrick  v.    Selden,   3352. 


N. 

Naab  v.    Stewart,   1798,    1799. 
Nadelman  v.  Pitchel,  1086. 
Nagel  v.  Lutz,  72. 

v.  McFeeters,-   1277. 
Nagle   v.    James,    3278. 

v.  Junker,    2146,    2791,    2812. 
V.  Stagg,   1423. 
v.  Taggart,    754. 
Nanz   v.   Oakley,   1090,   3067,   3095. 
Naser  v.   First  Nat.   Bank,   1413. 
Nash  v.   Hall,    1564,   1585. 
v.  Kneeland,    2277. 
v.  McCauley,   837. 
v.  Silver  Lake  Ice   Co.,   1929. 
v.  Spann,   865,   872. 
v.  White's  Bank   of  Buffalo,    978. 
Nason  v.    Ludington,    2589. 
Nason  Mfg.  Co.  v.  Craft  Refrigerat- 
ing Mach.   Co.,    1438. 
v.  Garden,    1642. 
Nathan  v.  Hendricks,   3233. 

v.  Uhlmann,  4159. 
Nathans  v.  Hope,   326,   680. 

v.  Satterlee,    3333. 
National  Bank  of  Auburn  v.  Lewis, 

972. 
National     Bank     of     Commerce     v. 
Bank,     of    New     York,     906, 
998,1012. 
v.  W.hiteman    Pulp    &   Paper   Co., 
1398,  1435. 
National  Bank  of  Commonwealth  v. 

Temple,    1274,    1304,    1305. 
National  Bank  of  Deposit  v.  Rogers, 

1083. 
National    Bank    of    Ft.     Edward    v. 

Goodwin,   605. 
National     Bank     of     Newburgh     v. 
Smith,  2627. 


National  Bank  of  Port  Jervis  v. 
Hansee,   642,   3070. 

National  Bank  of  the  Republic  v. 
Thurber,    3435. 

National  Bank  of  Troy  v.  Scriven, 
2254. 

National  Board  of  Marine  Under- 
writers v.  National  Bank  of  Re- 
public,  3908. 

National  Broadway  Bank  v.  Barker, 
1439,    1523. 
v.  Hitch,    2821.  v 

v.  Sampson,    4131. 
v.  Yuengling,    3416. 

National  Cash  Register  Co.  v. 
Schmidt,   3899. 

National    City    Bank    v.    New    York 
Gold  Exch.  Bank,   3786,  3788. 
v.  Westcott,    913. 

National  Commercial  Bank  v.  Lack- 
awanna  Transp.    Co.,    2764. 

National  Contracting  Co.  v.  Hudson 
River  Water  Power  Co..  1933, 
3744. 

National  Exch.  Bank  v.  Burkhalter, 
3184. 
v.  McFarlan,    2166. 

National  Exhibition  Co.  v.  Crane, 
293,   2120. 

National    Fire    Ins.    Co.    v.    Loomis, 
3228. 
v.  McKay,    972. 

National  Gramaphone  Corp.  Direct- 
ors,  Matter   of,    4081. 

National  Harrow  Co.  v.  Bement  & 
Sons,    3878,    3879. 

National   Lead   Co.   v.  Dauchy,   3003. 

National  Mechanics'  Banking  Ass'n 
v.   Usher,    2843. 

National  Oleo  Meter  Co.  v.  Jackson, 
1843. 

National  Park  Bank  v.   Clark,   4133. 
v.  Goddard,    1647. 
v.  Gunst,   1S88. 
v.  Salomon,    2886,    2889. 
v.  Whitmore,    1403,    1444. 

National  Press  Intelligence  Co.  v. 
Brooke,    247,    656,    1308. 

National  Print  Co.  v.  Patterson, 
3296. 

National  Radiator  Co.  v.  Hull,  4106. 

National  Sav.  Bank  v.  Slade.  3665, 
3855. 

National  Shoe  &  Leather  Bank  v. 
Baker,    2562,    2568,    3434. 

Mechanics'   Nat.   Bank,    1513,   3926. 

National  State  Bank  v.  Hibbard, 
2607. 

National  State  Bank  of  Camden  v. 
Wheeler,    3409. 

National  Steamship  Co.  v.  Sheahan, 
1032,   1035. 

National  Tradesmens'  Bank  v.  Wet- 
more,    3016,    3391. 

National  Trust  Co.,  In  re,   605. 

National  Trust  Co.  v.  Gleason,  397. 

National  Ulster  County  Bank  v. 
Madden,   2239. 

National  Union  Bank  v.  Riger,  1624, 
3419,    3423. 

National  Union  Bank  of  Dover  v. 
Reed,  828. 


427S 


TABLE  OF  CASES. 


[REFERENCES    ARE   TO   PAGES.] 


National  Wall  Paper  Co    v.  Gerlach, 

3306.  „ 

Naugatuck    Cutlery    Co.    v.     Rowc, 

2971. 
N;i\  ratil  v.  Bohm,  1936. 
Naylor  v.  Colville,  2927. 
v.  Lane,    308,   304. 
v.  Loomis,    4117. 
v.  Naylor.    2600. 
Nazro  v.  McCalmont  Oil  Co.,  1392. 
Neal  v.   Sachs,    1522. 

v.  Sheriff,    1911,    2025. 
Neftlis  v.  American  Tube  &  Iron  Co  , 
957. 
v.  Meyer,   3049,   3050. 
Nealon  v.  Frisbie,  2774. 
Needles  v.   Howard,    403. 
Neele   v.   Berryhill,   2809,   2S87. 
Neely  v.  McGrandle,   206. 

V.  Munnich,    1520,    2581. 
Neftel  v.  Lightstone,  30. 
Neglev  v.   Counting-Room  Co.,  2877. 

v.  Short,    3664. 
Nehrboss  v.   Bliss,    63,   3177,   3178. 
Neiberg  v.    Neiberg,    1053. 
Neil   v.   Thorn,  2225,  2370. 
Neill  v.   Van  Wegenen,   308. 

v.  Wuest,     617,     1868. 
Neilley,  Matter   of,    439,   471. 
Neilson  v.  Columbian  Ins.  Co,  2678. 
v.  Mutual  Ins.  Co.,   36,    2966. 
v.  Neilson,    3131,   3143,    3151,    3182. 
Neiman  v.  Butler,  2660. 
Nellis  v.  Rowles,  794,  4089,  4114. 
Nelson,  Ex  parte,   2117. 
Nelson   v.    Blanchfield,    1277. 
v.  Eaton,   830,   905,   997. 
v.  Hatch,   3833. 

v.  Ingersoll,    2617,    2619,    2625. 
v.  Kerr,   80,  3135. 
v.  McDonald,    2929. 
v.  Nelson,    1932. 
v.  New     York    &    N.     H.     R.     Co., 

2672. 
v.  Tenney,    3733. 
v.  Village   of    Canisteo,    3810. 
Nemetty  v.  Naylor,   815. 
Nepperhan   St.,   Matter  of,   3655. 
Neresheimer  v.   Rowe,    3632. 
Nesbit    v.   Mathews.    207. 
Nesmith    v.   Atlantic   Insurance   Co., 
2055. 
v.Clinton  F.  Ins.   Co.,  2699,   2701, 
2732,   2734. 
Nesmith's    Estate,   Matter   of,    833. 
Nestor  v.   Bischoff,  3051. 
Nethercott  v.   Kelly,    1040. 
Nette  v.  New  York  El.   R.  Co.,   2601. 
Netzel  v.  Mulford,    3308. 
Neuberger  v.  Keim,  2375. 

v.  Webb,    893,    1077. 
Neudecker  v.   Kohlberg,  905. 
Neugent  v.  Swan,  1605. 
Neugrosche    v.    Manhattan    Ry.    Co., 

1879. 
Neuman  v.  Mortimer,   3110. 

v.  Third  Ave.    R.   Co.,    1817. 
Neusbaum  v.   Keim,    2883. 
Neuwelt    v.    Consolidated    Gas    Co., 

4094,   4096. 
Nevada  Bank  v.   Cregan,   1435,   1450, 
1525. 


Neville,  Matter   of,    284. 
Neville   v.    Butler,    1667. 

v.  Neville,    1306. 
New  v.   Bance,    3422. 
v.  Fisher,    3662. 
v.  New,    2044. 

V.  Village  of  New  Rochelle,  3902. 
New  Mfg.  Co.  v.  Galway,   3000,  3016. 
Newall   v.    Bartlett,    2345. 
Newberg  v.  Schwab,   295. 
Newberry  v.  Lee,  3193. 
Newbould  v.  Warrin,  998,  3413. 
Newburger  v.   Campbell,   242. 
Newburgh    Sav.    Bank    v.    Town    of 

Woodbury,  3899. 
Newbury  v.  Newbury,  577,   1597. 
Newcomb  v.  Hale,  2919,  3964,  3965. 
v.  Johnson,    2174. 
v.  Keteltas,   2144. 
v.  Reed,    574. 
Newcombe    v.    Chicago    &   N.    W.    R. 
Co.,    838. 
v.  Irving  Nat.  Bank,   3190. 
v.  Lottimer,    75. 
Newell,    Ex   parte,    3170,    3172,    3177, 

3178. 
Newell    v.     Cutler,    196,    3295,    3302, 
3307,   3340. 
v.  Doran,    1328. 
v.  Doty,    911. 
v.  Hall,    334. 

v.  Newell,   1057,    1754,   1817. 
v.  Newton,   48. 
v.Wheeler,    2745,    3831. 
Newell   Universal    Mill   Co.    v.   Mux- 
low,    1998,    2913,    2922. 
New  England  Iron  Co.  v.  New  York 

Loan   &   Imp.    Co.,.  1843. 
New   England   Water   Works   Co.    v. 
Farmers'   Loan    &   Trust   Co.,    1053. 
Newgas  v.   Solomon,   1351. 
Newhall  v.  Appleton,  816,  1883,  1906, 

1907,    2727,   2987. 
New   Haven   Clock   Co.    v.    Hubbard, 

363. 
New  Haven  Web.  Co.  v.  Ferris,  813, 

1342. 
Newhorn  v.   Bowe,  1551. 
Newins  v.    Biard,   2849. 
New   Jersey  F.   &  M.  Co.   v.   Siebert, 

3336. 
New    Jersey    Steel     &    Iron    Co.    v. 

Robinson,   995. 
New  Jersey  Zinc  Co.  v.  Blood,  1939, 

1948,    1950. 
Newkirk  v.  Hooker,   1519,  1923. 

v.  New  York  &  H.  R.  Co.,  2272. 
Newland   v.    Baker,   3122. 
v.  West,    2591. 
v.  Zodikow,    4102. 
Newlin  v.  Lyon,  2391. 
Newman   v.    Cordell.   2338. 
v.  French,    2971. 
v.  Goddard,   131. 
v.  Greiff,    2965. 
v.  Marvin,    425,   2597. 
v.  Mayer,   2385,    2771. 
v.  Ogden,   2928. 
v.  Otto,    910. 

v.  West,    4080,    4095,    4099. 
New    Orleans    Gaslight    &    Banking 
Co.    v.    Dudley,    3654. 


TABLE  OF  CASES. 


4279 


[references  are  to  pages.] 


New    Rochelle    Gas    &    Fuel    Co.    v. 

Van    Benschoten,    3666,    3689. 
Newton  v.   Bronson,   128,   349. 
v.  Browne,    925. 
V.  Porter,    1759,    1765. 
v.  Reid,   2996. 

v.  Russell,    1592,    1612,    1613,   1614. 
v.  Sweet,    2959. 
New-Windsor  Turnpike  Co.  v.   Elli- 
son,  2055. 
New  York  Attrition  Pulv.  Co.  v.  Van 

Tuyl,    1578. 
New  York  Bank  Note  Co.  v.  Hamil- 
ton Bank  Note  Engraving  &  Print- 
ing  Co.,    1833,    2630,    3902. 
New     York     Breweries     v.     Nichols, 

3020. 
New  York  Bldg.   Loan  Banking  Co. 

v.   Begly,    1634. 
New  York  Cable  Co.,  Matter  of,  3S36. 
New  York  Cable  Co.  v.  City  of  New 

York,    3792. 
New  York  Cent.   Ins.   Co.   v.   Kelsey, 

1664,    2862. 
New   York   Cent.   R.    Co.,    Matter   of, 

3639. 
New    York    Cent.    R.    Co.    v.    Marvin, 

16. 
New  York  Cent.  &  H.  R.  R.  Co.,  Mat- 
ter of,   3668,   3689,  3695,   3863. 
New  York   Cent.    &  H.   R.    R.   Co.   v. 
Auburn  &  Elec.   R.  Co.,   3879. 
v.  Brennan,    462. 
v.  Haffen,  1053.   1592. 
V.  Shepherd,    1333,    1350. 
v.  State,    3619. 

v.  Village    of    Hastings-on-Hud- 
son,    1605. 
New  York  City  v.   Cornell,   3036. 

v.  Genet,   2566. 
New  York  City  Baptist  Mission  Soc. 
v.  Tabernacle  Baptist  Church,   648, 
2785,   2816,    3693. 
New  York  Citv  Suburban  Water  Co. 

v.    Bissell,    1582,    1605,    1606. 
New  York  Contracting  &   Trucking 

Co.   v.    Hawkes,    1665. 
New    York    Co -Op.    Bldg.    &    Loan 

Ass'n    v.    Brennan,    3651. 
New     York    County     Nat.     Bank    v. 

American   Surety  Co.,    2356. 
New  York  Drv   Dock  Co.   v.   Ameri- 
can Life  Ins.  &  Trust  Co,   1564. 
New    York    El.    R.    Co..    Matter    of, 

New  York  El.  R.  Co.  v.  Harold,  3006. 
v.  McDaniel,    2599. 
v.  Manhattan    Ry.    Co.,    611. 
New  York  Firemen  Ins.  Co.  v.  Wal- 

den,    2315,    2317,    2318. 
New  York  Fireproof  Tenement  Ass'n 

v.  Stanley,  4107. 
New    York    Guaranty    &    Indemnity 
Co.    v.    Gleason,    2223. 
v.  Rogers,    1352,    3204. 
New   York   Ice  Co.    v.    Northwestern 
Ins.    Co.    of    Oswego,    59,    62,    928, 
1068,    2765. 
New    York    Insulated     Wire    Co.     v. 
Westinghouse  Electric  &  Mfg.  Co., 
1047,    1048,    1706. 


New   York,   L.   &  W.    R.   Co.,   Matter 

of,    610,    816,    2900,    3603,    3664,    3669. 

New   York,   L.   &   W.   R.   Co.   v.    Erie 

R.   Co.,   3714. 
New  York,   L.  E.   &  W.  R.  Co..  Mat- 
ter   of,    40. 
New    York.    L.    E.    &    W.    R.    Co.    v. 
Carhart,      1777,      2930,      2936, 
2998. 
v.  Robinson,    989,    990,    1918. 
New   York   Land'Imp.   Co.    v.   Chap- 
man,   43. 
New    York   Life    Ins.    Co.    v.    Aitkin, 
469. 
v.  Baker,    3025. 
v.  Mayer,    2798,    2799. 
v.  Supervisors   of   City  &   County 

of  New  York,   19. 
v.  Universal    Life    Ins.    Co.,    1678, 
2850. 
New   York  Life  Ins.   &   Trust  Co.   v. 
City  of  New  York,   2147. 
v.  Cuthbert,    884,    2162. 
v.  Rand,    230. 
v.  Sands,   2050. 
New      York      Mail      &      Newspaper 

Transp.  Co.  v.   Shea,   339,    3727. 
New    York    Mut.    S.    &    L.    Ass'n    v. 

Weschester    F.    Ins.    Co.,    4176. 
New  York  News  Pub.  Co.  v.  National 

Steamship  Co.,   825. 
New  York  Press  Club  v.  Loyd,  1801, 

1809. 
New  York  P.  E.  Public  School,  Mat- 
ter of,  3956. 
New    York    Rubber   Co.    v.    Rothery, 

2668,    26S2. 
New    York   Security   &   Trust   Co.   v. 
Lipman,   1604. 
v.  Saratoga  Gas  &  Electric  Light 
Co.,    13,    821,    3751. 
New   York   State   Monitor  Milk   Pan 
Ass'n    v.    Remington    Agricultural 
Works,    796. 
New  York  W.   S.   &  B.   R.   Co..   Mat- 
ter   of,    3945,    3964,    3966. 
New    York.    W.    S.    &    B.    R.    Co.    v. 

Thorne,    2113,    2121. 
New  York  &  A.  R.  Co.  v.  New  York, 

W.  S.  &  B.  R.   Co.,  1563. 
New    York    &    Erie    Bank    v.    Codd, 

1524. 
New   York   &   H.    R.    Co ,   Matter   of, 

3667. 
New   York    &    H.    R.    Co.    v.    City    of 

New  York,   201,  608. 
New    York    &   M.    V.    Transp.    Co.    v. 

Tyroler,    828. 
New  York  &  N.  H.  R.  Co.  v.  Schuy- 
ler,   66,    1570,    3966. 
New  York  &  N.  J.  Ice  Lines  v.  How- 
ell, 2350,  2700. 
New  York  &  N.  J.  Tel.  Co.  v.  Metro- 
politan    Telephone     &     Telegraph 
Co.,   641. 
New  York  &  W.  U.  Tel.  Co.  v.  Jew- 

ett,    1655.    1657,   2643. 
Niagara  County  Nat.   Bank  v.   Lord, 

2597,    3432. 
Niagara    Falls     Suspension     Bridge 
Co.   v.   Bachman,   1992. 


4280 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


Niagara    Fire   Ins.    Co.    v.    Campbell 

Stores,   4161. 
Niagara   Grape   Market    Co.    v.    Wy- 

gant,    14S4. 
Niehol  v.  Columbian  Ins.  Co.,  1734. 
Nicholl  v.  Larkin,   501. 

v.  Mason,   46. 

v.  Nicholl,  3221,  3229. 
Nicholls,  Matter  of,   443,  470,   474. 
Nichols,    Matter    of,    30S4. 
Nichols   v.   Chapman,    2707. 

v.  Corcoran,    1077. 

v.  Drew,    74,    1005. 

v.  Dusenbury,    2342. 

v.  Fanning,    116. 

v.  Hewit,    2882. 

v.  Jones,    951. 

v.  Kelsey,   664,   733,   3071. 

v.  Ketcham,    2991,    3131. 

v.  MacLean,    674,    3765,   3845. 

v.  Nichols,    832,    1914. 

v.  Scranton  Steel   Co.,   1680,   3818. 

v.  Sixth  Ave.  R.  Co.,  2686. 

v.  White,   2239,    2263. 
Nichthauser  v.  Lehman,  1399. 
Nickell   v.    Tracy,    4080,    4107. 
Nickerson  v.  Canton  Marble  Co.,  888, 

907,  3858. 
Nicklas  v.    Keller,   2927. 
Nicoll  v.   Boyd,   3425. 

v.  Hyman,    1040. 

v.  Nicoll,    304. 

v.  Town   of  Huntington,    292S. 
Nicolls  v.  Ingersoll,   1367,   1368. 
Niebuhr  v.  Schreyer,  2617,  2634,  2635. 
Niemoller  v.  Duncombe,  866. 
Niendorff     v.     Manhattan     Ry.     Co., 

2240,    2272,    2328. 
Nies  v.   Broadhead,   2274. 
Niggli  v.   Foehry,   954. 
Nightengale  v.  Continental  Life  Ins. 

Co.,   1038. 
Niland  v.   Geer,  2284. 
Niles,    Matter   of,    253. 
Niles  v.  Battershall,   2649. 

v.  Crocker,    2959. 

v.  Griswold,    2988. 

v.  Lindsley,    2910-2912. 

v.  New    York    Cent.    &    H.    R.    R. 
Co,   2307,   2661,    3800. 

v.  Perry.    3065. 

v.  Vanderzee,    735,    1515. 
Nill  v.  Phelps,   3434. 
Nilsson  v.  De  Haven,  2288,  2291,  2332. 
Nimmons   v.    Tappan,    48,    480. 
Nims  v.  Merritt,   360. 
Ninety-nine  Plaintiffs  v.  Vanderbilt, 

257,   267. 
Ninth  Ave.   R.   Co.   v.  New   York  El. 

R.    Co.,   1565,    1605. 
Ninth  Nat.  Bank  v.  Moses,  3417. 
Nitchie  v.  Smith,   2877. 
Niver   v.    Crane,    3399. 

v.  Niver,    3198. 
Nixon  v.   Palmer,  1727. 
N.  K.  Fairbank  Co.  v.  Blaut,  951. 

953. 
Nobis   v.   Pollock,    2380,   3956. 
Noble  v.  Crandall,  811. 

v.  Prescott,    1286,    3671. 

v.  Trotter,    661. 


Noe   v.    Christie,    3209,    3214. 

v.  Gibson,   329. 
Nolan,  Matter  of,   1782. 
Nolan  v.  Brooklyn  City  &  N.   R.  Co., 

2247. 
Noland  v.  Noland,  339. 
Nolton   v.   Moses,    2235,    2317,    2333. 

v.  Western    R.    Corp.,    617. 
Nones    v.    Hope    Mut.    Life    Ins.    Co., 

794,   996. 
Noonan  v.  Grace,  1562,   1595. 

v.  New  York,  L.   B.   &  W.  R.  Co., 

639,   640.   2676. 
v.  Smith,    1994. 
Norbury  v.  Seeley,  2761. 
Norcott   v.    First   Baptist   Church    of 

Rome,    880. 
Norcross      v.      Hollingsworth,      3364, 

3365. 
Norden  v.   Duke,    4082,    4134. 
Nordlinger  v.  McKim,   835,   1067. 
Norfolk  &  N.   B.   Hosiery  Co.  v.  Ar- 
nold,   1443,    3670. 
Norris  v.  Breed,  1891. 

v.  Denton,    2890. 
North  v.  Piatt,  2583,   2593. 
Northam    v.    Duchess    County    Mut. 

Ins.   Co.,   2746. 
North    American    Gutta-Percha    Co., 

Case   of,   1641. 
North  American  Trust  Co.  v.  Ayraar, 

1413. 
Northampton    Nat.    Bank   v.    Kidder, 
2290,    2688,    2711,    3868. 
v.  Wylie,    1459,    1460. 
Northern   Ry.   Co.  of  France  v.  Car- 

pentier,    1306. 
Northport    Real    Estate    &    Imp.    Co. 

v.  Hendrickson,   463. 
Northrop  v.  Hill,  486. 
v.  Van    Dusen,    2937. 
v.  "Wright,    2324. 
Northrup  v.   Garrett   1459. 

v.  New    York,    O.    &   W.    Ry.    Co., 

2339. 
v.  People,  162. 
v.  Smith,    2084,    2087. 
v.  Village   of   Sidney,   4081. 
Norton,  Matter  of,   3855. 
Norton   v.   Bennett,    1886. 
v.  Gary,    798. 

v.  Fancher,  2810,  2906,  2918,  3595. 
v.  Kosboth,    2872. 
v.  Mackie,    1885. 
v.  Matthews,    2666. 
v.  Rich,    2938. 
v.  Union  Trust  Co.,   1863. 
v.  Webber,   2268. 
Norwood  v.   Barcalow,   255. 

v.  Ray   Mfg.    Co.,    326,    680. 
Nosser    v.    Corwin,    714. 
Noster   v.    Metropolitan   St.    Ry.    Co., 

324. 
Notara  v.   De  Kamalaris,   51. 
Nott  v.  Clews,   1780. 
Nourny  v.   Dubosty,  854. 
Novion  v.  Hallett,   140. 
Noxon  v.  Bentley,  2031. 

v.  Glen,   1038. 
Nove  Mfg.  Co.,  John  T.,  v.  Raymond, 
2026. 


TABLE  OF  CASES. 


4281 


[references  are  to  pages.] 


Noye   Mfg.    Co.,    John    T.,    v.    Whit- 
more,  1956. 
Noyes  v.  Butler,   814. 

v.  Children's  Aid   Soc,   3000. 
v.  Wyckoff,    2008,    2010. 
Nugent   v    Keenan,    1907,    2987. 

v.  Metropolitan    St.    R.    Co..    2708, 

2731,    2736,    2818. 
v.  Rensselaer    County    Mut.    Fire 
Ins.  Co.,  4093. 
Nussberger  v.  Wasserman,  1916. 
Nutt  v.    Cuming-,    2801,   3126. 
Nutting-  v.  Kings  County  El.  R.  Co., 

3628. 
Nyack  &  W.  Gaslight  Co.  v.  Tappan 
Zee  Hotel  Co.,    1527. 

O. 

Oakes  v.  De  Lancey,   353,   1953. 

v.  Howell,    472,   494,    496. 
Oakeshott   v.    Smith.   3870. 
Oakley    v.    Aspinwall,    115,    230,    231, 
3872 

v.  Becker,    3091,    3189. 

v.  Briggs,   3233. 

v.  Cokalete,   594,   2812. 

v.  Oakley,    912. 

v.  Sears,    2705,    2708. 

v.  Tugwell,   1015. 

v.  Tuthill,    1088. 
Oaksmith   v.    Baird.   2677. 
Oatley  v.  Lewin,  1292. 
Oatman  v.  Watrous,   4094,  4099. 
Oats  v.  New  York  Dock  Co.,   2714. 
Obart  v.  Simmons  Soap  Co.,  2690. 
O'Beirne   v.    Bullis,    2141,    2145,    2151. 
2152. 

v.  Lloyd,   49,   54. 

v.  Miller,    1934. 
Oberlander    v.    Spiess,    3869. 
Oberlie    v.    Bushwick    Ave.     R.    Co., 

2693. 
Obregon  v.  De  Mier,  1287,  1364. 
O'Brien,    Matter    of,    3665. 
O'Brien   v.   Blaut,   2069,   2083. 

v.  Bowes,   2159,  2162. 

v.  Browning,  50. 

v.  Catlin,    662,    882. 

v.  Catskill      Mountain      R.      Co./ 
2579,   2584,    2591. 

v.  City  of  New  York,  54,  3832. 

v.  Commercial      Fire      Ins.      Co., 
1754,    2966. 

V.  Dwyer,    4111. 

V.  Fitzgerald,    21. 

v.  General    Synod    of    Reformed 
Church,    3225. 

v.  Glenville     Woolen     Co.,     1484, 
1492. 

v.  Hagan,   2063. 

v.  Hashagen,    3145,   3147. 

v.  Kursheedt,    832. 

V.Long,   2630,    2632,   3604,   3664. 

v.  McCarthy,    2143. 

V.Manhattan    R.    Co.,    4133,    4134. 

v.  Mechanics'     &     Traders'     Fire 
Ins.   Co.,    1469. 

v.  Merchants'  F.  Ins.  Co.,  2700. 

v.  Merchants'      Ins.       Co.,       1492, 
2109. 

v.  Metropolitan   St.   liy.  Co.,  1052, 
1054. 


O'Brien  v.  New  York  Cent.   &  H.  R. 

R.   Co.,   2245. 

v.   Ottenberg,    21,   S39. 

v.  Smith,    3670,    3849. 

O'Bvrne,  Matter  of,   1347. 

O'Callaghan  v.   Carroll,   3956. 

v.  Fraser,    329,    164w 
Ochs  v.  Pohly,   3369. 
Ockershausen's    Estate,    Matter    of, 

340. 
O'Clair  v.  Hale,  37. 
O'Connell  v.  Gallagher,  4087,  4173. 
O'Conner  v.   Merchants'   Bank,   2947. 
O'Connor,  Matter  of,   145. 
O'Connor  v.  Docen,  3396. 
v.  Felix,  3236. 
v.  Green,  2095. 
v.  Hendrick,   4072. 
v.  McLaughlin,    2732,    3683,    3713, 

4081. 
v.  Mechanics'   Bank,   3374. 
V.  Moody,   3870. 
v.  Moschowitz,    682,    1922. 
v.  National   Ice  Co.,   2231. 
v.  New    York    &    Y.    Land    Imp. 

Co.,   1611. 
v.  O'Connor,    3129. 
v.  Union  R.  Co.,  2915. 
v.  Virginia    Pass.    &    Power   Co., 

4048,  4113. 
v.  Walsh,   40S5. 
Odell    v.    McGrath,    2226,    2654,    2658, 
2659. 
v.  Twomey,  3229. 
Odell's  Estate,  Matter  of,  330. 
O'Donnell  v.  Brown,  4032. 
Odendall  v.   Haebler,   2676,   3S02. 
v.  Kerr,   2799. 
v.Lindsay,      3141,      3143,      3145, 

3146. 
v.  McMurn,  1581. 
O'Donoghue  v.  Boies,  2052,  3225. 

v.  Simmons,   1553,    2331. 
O'Dougherty    v.     Remington     Paper 

Co.,   53,   969. 
Oechs  v.  Cook,   910. 
Oelberman  v.  New  York  &  N.  R.  Co., 
1057. 
v.  Rosenbaum,  296S. 
Oesterreicher  v.  Raisbeck,  3715. 
Oesterreiches  v.  Jones,  2777. 
O'Gara  v.  Kearney,  3060,  3913. 
Ogden  v.  Arnot,  3432. 
v.  Bodle,  49. 

v.  Coddington,   385,   386,   2755. 
v.  Devlin,   274,  278. 
v.  Payne,  2028. 
v.  Pioneer     Iron     Works,      1916, 

1921,  4150. 
v.  Raymond,  2664. 
v.  Sanderson,  4013. 
v.  Wood,  3400. 
Ogden  Lumber  Co.,  E.  H,  v.   Busse, 

3861. 
Ogdensburgh,     R.     &    C.    R.    Co.     v. 

Frost,  41. 
Ogdensburgh    &    C.    R.    Co.    v.    Ver- 
mont &  C.  R.  Co.,  812,  816. 
Ogdensburgh  &  L.  C.  R.  Co.  v.  Ver- 
mont &  C.  R.  Co.,  3010,  3011,  3662, 
3845. 
O'Gorman  v.  Kamak,  2681. 

v.  New  York  &  I.  C.  R.  Co.,  3805. 


1:282 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


O'Hagan  v.  Dillon.  2273. 
o'Hara   v.    Brooklyn   Heights  R.   Co., 
4168. 
v.  Brophv.  2926,  2930. 
v.  Citv   of   Brooklyn,   3870. 
v.  Ehrich,  867. 
O'Harra  v.  New  York  Cent.  &  H.  R. 

R.  Co.,  2707. 
Ohlsen  v.  Equitable  Life  Assur.  Soc, 

s  ."> : ! 
Ohly  v.  Ohly,  1034. 
Oishel  v.  Lazzarone,  266. 
I  I'Keefe  v.   Shipherd,  2903. 
Olansky  v.  Berlin,  2273,   2275. 
O'Laughlin  v.   George  H.   Hammond 

&  Co.,  3026. 
Olcott  v.  Carroll,  906. 
v.  Heermans,  1634. 
v.  Lilly,  1364,  1369. 
v.  Maclean,    143,   814,   3033. 
v.  Robinson,  3141. 
v.  Tioga  R.  Co.,  454. 
Old  Dominion  S.  S.  Co.  v.  MeKenna, 

1281. 
Old  Staten  Tsland  Dyeing  Establish- 
ment v.  Skinner  Engine  Co.,  1595. 
Olean     St.     Ry.     Co.     v.     Fairmount 

Const.  Co.,  737. 
O'Leary  v.  Candee,  867. 
Olin   v.    Arendt.    3626. 
Olivella  v.    New   York  &   H.    R.   Co., 

1003. 
Oliver  v.  Bennett,  269,  954. 

v.  First      Presbyterian      Church, 

2700,   2701. 
v.  French,   2772,   2813,  3651,  3834. 
v.  Walter    Heywood    Chair   Mfg. 
Co.,  144S. 
Oliwill    v.    Verdenhalven,    294,    298, 

300. 
Olmstead  v.  Keyes,   2946. 

v.  Rich,  2142. 
Olmsted  v.  Vredenburgh,   30S1,  3093. 
Olney  v.  Blosier,  2691. 
v.  Goodwin,  717. 
v.  Hatcliff,   1786,  1805,  1854. 
O'Loughlin   v.   George   H.    Hammond 
&  Co.,  3028,  3029. 
v.  Hammond,  2034. 
Olssen  v.   Smith,   1569. 
Olzen  v.   Schierenberg,   397. 
O'Mahonev    v.    Belmont,    1626,    1628, 

1630,   1633,  1651,  1654,  1656. 
O'Meara    v.    Brooklyn    City    R.    Co., 
988. 
v.  Interurban    St.    R.    Co..    2867, 
2875. 
Onderdonk     v.     Peale,     Peacock     & 
Kerr,  4114. 
v.  Voorhis,  1507. 
Oneida  County  Bank  v.   Bonney,   51. 

v.  Lewis,   170S. 
Oneida  Nat.  Bank  v.   Stokes,   1668. 
O'Neil  v.  Durkee,  1361. 
v.Hester,    1041. 
v.  Hoover,   2827. 
O'Neill,   Matter  of,    244,   253. 
O'Neill  v.  Bender,  775. 
v.  Howe,    2625. 
v.  Interurban    St.    Ry.    Co.,    867, 

4096. 
v.  James,   2294. 
v.  Morris,   4020. 


Oneonta,  C.  &  R.  S.  R.   Co.   v.  Coop- 

erstown  &  C.  &  R.  Co.,  3714. 
O'Niel   v.    Dry   Dock,    E.   B.    &   B.    R. 

Co.,  2335. 
Onondago  County  Bank  v.  Shepherd, 

562. 
Onondaga  Nation  v.   Thaeher,   82. 
Ontario  Bank  v.  Baxter.  563. 

v.  Hallett,  3122. 
Opdyke    v.    Marble,    545,    551,    1831, 
1832,   1839. 
v.  Prouty,   2690. 
V.  Weed,   2205. 
Opening  of  One  Hundred  and  Sixty- 
Third  Street,  Matter  of,  15. 
Opitz  v.  Hammen,  3018. 
Oppenheimer   v.    Hirseh,    1599. 

v.  Kruckman,  2374. 
Orcutt   v.   Cahill,    4013. 
Oppermann  v.  Barr,  1073. 
v.  Pettit,  266. 
v.  Rickenbrodt,   2677. 
Oregon   Steamship  Co.   v.   Otis,   1029, 

2  5  9S. 

O'Reilly  v.  Block,  4002. 

v.  Greene,   850,   957. 
O'Reillv,    Skelly    &    Fogarty    Co.    v. 

Greene,  1006. 
Organ  v.  Wall,  725. 
Orient     Mut.     Ins.     Co.,     Matter     of, 

1655. 
Orleans      County      Nat.      Bank       v. 

Spencer,  2825,   2849. 
Ormes  v.  Baker,  3350. 
Ormsbee  v.  Brown,  1056. 
Ormsby  v.  Babcock,  2974. 
Orne  v.  Greene,  1802. 
O'Rourke  v.  Feist.  3709. 

v.  Henrv     Prouse      Cooper     Co., 
3113. 

v.  United  States  Mortg.  &  Trust 
Co.,  4095. 

v.  Yonkers  R.  Co.,  2198,  2199. 
Orphan    Asylum    Soc.    v.    McCartee, 

2123. 
Orpherts  v.  Smith,   1644. 
Orr  v.  Currie,  76S. 

v.  McEwen,  756,  937. 
Orr's  Case,   3258,  3324. 
Orser  v.  Glenville  Woolen  Co.,   2079. 

v.  Grossman,   1466. 

v.  Storms,  3244. 
Orvis  v.  Dane,  874. 

v.  Goldschmidt,    777,   895,   1387. 

v.  Jennings,   874. 
Osborn  v.  Alexander,   3102. 

v.  Barber,   3669,  4144. 

v.  Cardeza,  3611. 

v.  Heyer,  1628. 

v.  MeCloskey,  718. 

v.  Taylor,   1565. 
Osborne  v.  Heyward,  2382,   2385. 

v.  New    York    Mutual    Ins.    Co., 

v.  Parker,  2915,  2918,  2959. 

v.  Randall,  507. 

v.  Sellick,   2130. 
Osgood  v.  Joslin,  630,  1924. 

v.  Maguire,    52. 

v.  Manhattan  Co.,  3861. 

v.  Whittelsey,  1018,   1072. 
O'Shea  v    Kirker,   2362,   2760. 

v.  Kohn,   1327,   3204,   3205. 


TABLE  OP  CASES. 


4283 


[REFERENCES   ARE   TO   PAGES.] 


Oshiel  v.  De  Graw,   659. 
Osincup  v.  Nichols,  4020. 
Ossman   v.    Crowley,    319S. 
Ostell  v.  Brough,  1286. 
Osterhoudt    v.    Board    of    Sup'rs    of 
Ulster      County,      422,      424, 
1091. 

v.  Osterhoudt,  3873. 
Osterhout  v.  Rabe,   1934,    1936. 
Osterman    v.    Goldstein,    2007,    2008, 

2011,  3857. 
Ostrander  v.  Campbell,  3670,  3725. 

v.  Conkey,    1048,    1662. 

v.  Harper,   1873,   1876. 

v.  Hart,   2761,   3865,   3869. 

v.  Walter  3121,  3122. 

v.  Weber,    1628. 
O'Sullivan  v.  Connors,  3764. 

v.  Knox,  2661,  3860. 

v.  New  York  El.  R.  Co.,  2259. 

v.  Roberts,  2277. 
Othout  v.   Rhinelander,    660. 

v.  Thompson,    518. 
Otis  v.  Crouch,   21,   185. 

v.  Porman,    3039. 

v.  Gray,  2128. 

v.  Ross,  949,  3630. 

V.  Shants,   1008,   1009. 

v.  Spencer,   188,  3757,   3759. 

v.  Wakeman,   1371. 

v.  Wood,  3113. 
O'Toole's     Estate,     Accounting     of, 

1972. 
Otten    v.    Manhattan    Ry.    Co.,    1050, 

1059,  3880,   3881. 
Ottendorf  v.  Willis,  2235. 
Ottinger    v.    New    York    El.    R.    Co., 

1085. 
Ottman  v.  Daly,  752,  753,  755. 

v.  Fletcher,  840,  1064. 

v.  Griffin,  869. 
Otto  v.   Young,   2351,   2698,    4165. 
Outerbridge  v.   Campbell,   4132. 
Outwater  v.  Moore,  3903. 
Overheiser  v.  Morehouse,  114,  116. 
Overseers  of  Poor  v.  McCann,  723. 
Overton  v.  Barclay,  756. 

v.  National     Bank     of     Auburn, 
2769,   2790. 

v.  Village  of  Olean,   402. 
Oviatt  v.  Oviatt,  870. 
Ovoronhe  v.  Terry,  119,  3090. 
Owen  v.  Conner,  2760. 

v.  Dupignac,   3254,   3278. 

v.  Homeopathic    Mut.    Life    Ins. 
Co.,  426,  2075. 

v.  Jacobia,  3191. 

v.  Tyng,  2561. 
Owens  v.  Bloomer,  3977. 

v.  Loomis,   47. 
Owl   Cigar  Co.  v.   Lidgerwood,   1398. 


Pach  v.  Geoffroy,   546. 

v.  Gilbert,   1482,  1483,  1528,  2970, 

3167. 
v.  Orr,   1433,   1525. 
Pacific  Mail  Steamship  Co.  v.  Irwin, 
839 
v.  Leuling,   2108. 
v.  Toel,   1605,  1611,  3849. 


Pacific    Mut.    Ins.    Co.    v.    Machado, 

1297. 
Packard   v.   Hill,   1720,   1723. 

v.  Pulitzer,  1961. 

v.  Stephani,   271. 
Packer  v.  Nevin,  1581,   1611. 
Paddock,  Ex  parte,  3166. 
Paddock  v.  Barnett,  1040,  1041,  4031. 

v.  Beebee,  664. 

v.  Kirkham,  18,  1733. 

v.  Palmer,    592,    891,    896,    901. 

v.  Wells,  231.  2193. 

v.  Wing,   385. 
Page  v.   City  of  New  York,  2240. 

v.  Delaware     &    H.     Canal    Co., 
4119,  4120. 

v.  Krekey,   2235. 

v.  Methfessel,  2602. 

v.  Shainwald,   2265. 
Paget  v.  Melcher,  2773. 

v.  Pease,  779,  1388. 

v.  Stevens,  763. 
Pahl  v.  Troy  City  Ry.  Co.,  2243. 
Paige   v.   Chedsey,   2350. 

v.  Willet,  913. 
Paine  v.   Aldrich,  2025,   2034. 

v.  McCarthy,  937,  2847. 
Paine  Lumber  Co.  v.  Galbraith,  808. 
Paisley  v.  Casey,  2381. 
Pakas  v.  Hollingshead,  4047. 
Palen   v.    Bushnell,    1052,    2086,    2090, 
2097,   3268,   3368. 

v.  Johnson,   445,   1844. 
Palmer,  Matter  of,   2072,   2085. 
Palmer  v.  Bennett,  505. 

v.  Chicago     Evening     Post     Co., 
748,  749. 

v.  City  of  New  York,  497. 

v.  Colville,  630,  3355. 

v.  Davis,  999. 

v.  Day,   4126. 

v.  Ensign,   2081. 

v.  Field,  958,  2299. 

v.  Foley,   1604,   1605. 

v.  Foote,   33S8. 

v.  Great    Western    Ins.    Co.,    376, 
1762. 

v.  Haight,  2256. 

v.  Holland,   2338. 

v.  Hussey,  1321. 

v.Lawrence,    229,    2150,    3924. 

v.  Matthews,   2244. 

v.  Minar,  2314. 

v.  Moeller,   3705. 

v.  Murray,  2079. 

v.  Mutual  Life  Ins.  Co.,  431,  433. 

v.  Palmer,    303,    2608,   2617. 

v.  Phenix   Ins.   Co.,   107,   2611. 

v.  Salisbury,   884,  10437 

v.  Smedley,  2901. 

v.  Starbuck,  1459. 

v.  United  Press,  1836,  1851,  1854. 

v.  Van  Orden,  294. 
Palmer  Co.,  Albert,  v.  Shaw,  1023. 
Pain  v.  Vilmar,  3200. 
Panama    R.    Co.    v.    Johnson,    2324,. 

2326,  2333. 
Pardee  v.  De  Cala.  3409. 

v.  Koote,    987. 

v.  Leitch,  1469,  3144,  3146. 

v.  Schenck,  i'967. 

v.  Tilton,  3258,  3319. 


4284 


TABLE  OP  CASES. 


[REFERENCES   ARE   TO   PAGES.] 


Pardi   v.   Conde,   SS6,   S94,   952,   1077. 

Parent    v.    Kellogg,   3187. 

Pa  rot    v.    New    York    El.    R.    Co..    60, 

2356. 
Pai  fit  v.  Warner,  3763. 
Parish    v.    Parish,    2043,    2044,    3239, 

3241,  3614,   4044. 
Park  v.   Church,  3089,  3096. 

v.  Moore,  2117. 

v.  Musgrave,  1607. 

v.  New    York   Cent.    &   H.    R.    R. 
Co.,  2986. 

v.  Park,   2752,  3651. 

v.  Spaulding,  2932. 
Park    &    Sons    Co.,    John    D.,   v.    Na- 
tional Wholesale  Druggists  Ass'n, 
82S,  S30,   833,   834,  1066. 
Parke  v.  Gay,   759,  1386. 

v.  Heath,  1373. 
Parker  v.  Baker,   539. 

v.  Baxter,  2626. 

v.  Bradley,   3185. 
•     v.  City  of  Williamsburgh,  276. 

v.  Commercial   Tel.   Co  ,   2106. 

v.  Day,  3882. 

v.  Hunt,  3336,  3339. 

v.  John  Pullman  &  Co.,  2764. 

v.  Laney,  2153. 

v.  Linden,  2773,   2811,  2812. 

v.  Lithgoe,  1750. 

v.  Lvthgoe,    2831. 

v.  McCunn,  3764. 

v.  Marco,  730,  731,  1309. 

v.  Paine,   957,   2264. 

v.  Parker,   2156. 

v.  Rochester,  2891. 

v.  Selye,  50. 

v.  Snell,  2560. 

v.  Speer,  307,  3041,  3202. 

v.  Stafford,   2337. 

v.  Tillinghast,  846. 
Parkhurst  v.  Berdell,  2581,  3789. 

v.  Rochester  Lasting  Mach.   Co., 
186,    816. 
Parkinson  v.  Scott,  1880,  2119. 
Parkman  v.  "Murray,  3732,  3770. 

v.  Sherman,  538. 
Parks  v.  Parks,  92. 
Parmele     Co.,     Chaj-les     Roome,     v. 

Haas,    607. 
Parmelee  v.  Egan,  3413.. 

v.  People,   2247. 
Parmenter  v.  Roth,  189,  603,   1924. 

v.  State,   449. 
Parmerter  v.  Baker,  74. 
Parow  v.  Cary,   242. 
Parr  v.  Loder,   3623. 
Parrish,  Matter  of,    3287. 
Parrish  v.   Parrish,   3922. 

v.  Sun  Printing  Pub.  Ass'n,  2203, 
2204,  2205,  2208,  2303. 
Parrott    v.    Knickerbocker    Ice    Co., 
171. 

v.  Sawyer,  3023. 
Parshall  v.  Klinck,  2707. 

v.  Shirts,   3151. 
Parsons  v.  Barnard,  140. 

v.  Brown,  2346. 

v.  Chamberlin,  694. 

v.  City  of  Rochester,  500. 

v.  Hayes,  926. 

v.  McDonald,   4126. 


Parsons   v.   Parker,   3S71. 

v.  Parsons,  2688. 

v.  Sprague,   1517,  2995. 

v.  Sutton,  879,  980,  2231. 

v.  Travis,  3734. 

v.  Winne,    3685. 
Partridge  v.  Badger,  827. 

v.  Brown,  1434. 
Pascekwitz  v.  Richards,  948. 
Passavant  v.  Cantor,  863. 

v.  Sickle,  863,  864. 
Pasternak  v.  Weiss,   3646. 
Patchen  v.  Delaware  &  H.  Canal  Co., 
1912. 

v.  Rofkar,   33  91. 
Patchin  v.  Astor  Mut.  Ins.  Co.,  2256. 

v.  Peck,  1090. 

v.  Sands,   2059. 
Paterson     v.     Goorley,     3341,     3342, 

3352. 
Patrick    v.    "Victor    Knitting     Mills 

Co.,   2350,   2700. 
Patten  v.  Bullard,  2581. 

v.  Connah,    3350. 

v.  Hazewell,  2171. 

v.  Stitt,  3967. 
Patterson,     Matter     of,      198,     3268, 

3368,   3375,    3642,   3647. 
Patterson   v.    Bloomer,    1607,    1610. 

v.  Brown,    3418. 

v.  Buchanan,   2958,   2959. 

v.  City  of  Binghamton,  118. 

v.  Copeland,    2093,    2094. 

v.  Delaney,    1438. 

v.  Graves,    2630. 

v.  Hamilton,   3981. 

v.  Hare,  1052. 

v.vHochster,   2820,  2829. 

v.  Knapp,    2627. 

v.  McCann,   3724. 

v.  McCunn,    432,    650,    666,    2085, 
3714. 

v.  Parker,   1335. 

v.  Perry,    1484,    1859,    1860,    3126. 

v.  Powell,  258,  955. 

v.  Stettauer,    1768,    2576. 

v.  Westervelt,   2694. 
Pattison  v.   Adams,  829. 

v.  Bacon,    639. 

v.  Hines,  4151. 

v.  O'Connor,    177,    916,    938,    3633. 

v.  Richards,    968,    977. 

v.  Taylor,  825. 
Paul  v.  Munger,  1558,  1596. 

v.  Parshall,    2162. 
Pauley    v.    Millspaugh,    2958. 
Paulison  v.  Field,  2566. 
Paulitsch   v.   New   York  Cent.    &   H. 

R.    R.    Co.,    2702,   2728. 
Paulsen  v.  Van   Steenbergh,   75. 
Paulson   v.    New  Jersey   &  N.   Y.   R. 

Co.,  2131. 
Pavenstedt    v.    New    York   Life    Ins. 

Co.,  4124. 
Paxton  v.  Patterson,  998,   1005. 
Payn  v.  Beal,  3137. 
Payne  v.    Becker,    3405. 

v.  Eureka    Elec.    Co.,    1934. 

v.  Gardiner,   493. 

v.  Kings   County  Mfg.   Co.,   2306. 

v.  Slate,   529. 

v.  Smith,  881. 


TABLE  OF  CASES. 


4285 


[REFERENCES   ARE   TO   PAGES.] 


Payne  v.  Young-,  545. 

Payson  v.  Bank  of  Savings,  1866. 

Peabody  v.   Cortada,   2562. 

v.  Washington  County  Mut.  Ins. 
Co.,  1005. 
Peake  v.    Bell,    2721. 
Pearce  v.  Nester,   4032. 
Pearl  v.  Robitschek,  804,  805. 
Pearsall  v.  Lawrence,   1369. 

v.  Westcott,    3916. 
Pearson  v.  Cole,   2978. 

v.  Lovejoy,  647,  3688,  3846. 
Peart   v.    Peart,    178,    940,   3633,   3669. 
Pease  v.  Gillette,   489. 

v.  Smith,    1947. 
Pease  Furnace  Co.,  J.  F.,  Matter  of, 

210. 
Peck  v.   Baldwin,   3292. 

v.  Brooks,   1518. 

v.  Cohen,    2928. 

v.  Coler,   2816. 

v.  Cook,  765,  767,  780. 

v.  Dickey,    184,    925. 

v.  Disken,    3260. 

v.  Fonda,  J.  &  G.  R.  Co.,  2694. 

v.  Goodberlett,  2767. 

v.  Hiler,  2283,  2706,  2753. 

v.  Hotchkiss,   47,   1546. 

v.  Hozier,  1303 

v.  Hurlburt,    479. 

v.  Lake,  22  40. 

v.  Lombard,    1345. 

v.  Mallams,    3159,    3244. 

v.  Mulvihill,   1420. 

v.  New    Jersey    &    N.    Y.    R.    Co., 
3^28 

v.  New    York    Cent.    &   H.    R.    R. 
Co.,   2696. 

v.  New    York    &    L.    U.    S     Mail 
Steamship  Co.,  497,   527. 

v.  New  York  &  N.  J.  R.  Co.,  2764. 

v.  Nichols,  3868. 

v.  Ormsby,    1430. 

v.  Peck,    2888,    3673,   3982. 

v.  Phoenix  Ins.   Co.,   1907. 

v.  Powers,  2029,   3029. 

v.  Randall's    Trustees,     454. 

v.  Richardson,  405,  790,  928,  1006. 

v.  Richmond,   2231. 

v.  Root,  31. 

v.  Tiffany,  3094,  3117,  3121,   3134, 
3193. 

v.  Yorksl     189,     236,     377,      1589, 
1597,    2594,    2629,    2944. 
Peck's  Will,  Matter  of,  3987. 
Pecke     v.     Hydraulic     Construction 

Co.,  31. 
Peebles  v.  Rogers,  188,  663. 
Peekamose  Fishing-  Club,  Matter  of, 

Peel  v.   Elliott,   645,  1346. 
Peet  v.  Cowenhoven,   626,   3094. 

v.  Hatcher,   1569. 

v.  Kimball,   1592,  2999. 

v.  Warth,   2977. 
Peetsch   v.   Quinn,   291,   2944,   3950. 

v.  Sommers,    1530,    1538. 
Pegram  v.   Carson,    1846. 

v.  New  York  El.   II.  Co.,  21,  2143. 
Peiffer  v.  Wheeler,   1463. 
Peirson    v.    Board    Sup'rs  .of   Wayne 
County,  451,   475. 


Pelham  Hod   Elevating-  Co.   v.   Bag- 

galey,    1S62. 
Pelkey  v.  Town   of  Saranac,   1891". 
Pell  v.  Lovett,  56. 

v.  Pell,   3234. 
Pelz  v.   Roth,  4148,  4149. 
Pendell  v.  Coon,   1759. 
Pendergast  v.   Dempsey,   3316. 

v.  Greenfield,    380. 
Pendleton  v.  Eaton,  2927. 

v.  Empire    Stone    Dressing    Co., 

2256. 
v.  Johnson,  2946,   2948. 
v.  Johnston,  2697. 
v.  Pendleton,  2723. 
Penfield  v.  Carpenter,  2276. 
v.  Dailey,    1644. 
v.  James,   3028,  3036. 
v.  White,   1596. 
Penman  v.  Slocum,  1053. 
Penn  v.   Remsen,    1365. 
Pennacchio  v.   Greco,   4102. 
Pennell   v.   Wilson,   3939. 
Penniman   v.   Fuller   &  Warren   Co., 

1942. 
Pennoyer  v.  Neff.  759. 
Pennsylvania  Coal  Co.   v.   Delaware 

&  Hudson  Canal  Co.,  844,   2144. 
Pennsylvania  Glass   Co.,    Matter   of, 

3297. 
Penny  v.   Rochester  Ry.  Co.,  2245. 
Penoyar  v.  Kelsey,   1383,  1404. 
Penrhyn  Slate  Co.  v.  Cranville  Elec- 
tric Light  &  Power  Co.,  3873. 
Pensa  v.  Pensa,  276,   3597,  3710. 
Pentz  v.   Hawley,    3032,    3038. 
People   v.   Abbot,    2255. 
v.  Abbott,    2939. 
(ex    rel.     Criscolla)     v.     Adams, 

315. 
(ex  rel.  Morris)   v.  Adams,   2992. 
(ex  rel.  Winans)  v.  Adams,  3010, 

3011. 
v.  Adirondack    R.    Co.,    3879. 
(ex    rel.    Kelly)    v.    Aitken,    318, 

322. 
v.  Albany  &  S.   R.  Co.,   545,  1632, 
1642,    2140,    2143,    2145,    2152, 
2379,  2771,  2932. 
V.Albany  &  V.   R.  Co.,   341,   432, 

1588,   3009. 
(ex  rel.  Martin)   v.  Albright,  16, 

2392. 
v.  Alden,    2961. 
(ex  rel.  Cantrell)  v.  Alker,  1912, 

3758. 
(ex   rel  Adsit)    v.   Allen,    831. 
(ex    rel.    Smith)    v.    Allen,    887, 

896. 
v.  American    Loan    &   Trust   Co., 

13,    17,    3951. 
v.  Ames,    31S6. 
v.  Anglo-American  Sav.   &  Loan 

Ass'n,   3667. 
(ex    rel.    Lawyers'    Surety    Co.) 

v.  Anthony,   324,   340. 
v.  Armour,   1776,   1789. 
v.  Arnold,  457. 
v.  Ash,  2680. 
v.  Assessors  of  Town  of  Barton, 

2937. 
v.  Augsbury,    2247. 


4286 


TABLE  OF  CASES. 


[REFERENCES    ARE    TO    PAGES.! 


People   v.   Austin.    2256,    2260. 

(ex    rel.    Crandal)    v.    Babcock, 

790. 
v.  Bacon,  316  1. 
(ex   rel.   Bronx  Gas  &  Elec.  Co.) 

v.    Baker.    361G. 
(ex  rel.  Woolley)  v.  Baker,  3166, 

3172.    3173. 
v.  Ball,    3315. 
v.  Mallard,    3834. 
(ex    rel.    Harlow)     v.    Bancker, 

13. 
v.  Banker,  2009. 
(ex   rel.    Broadway   Imp.   Co.)    v. 

Barker,  3875 
(ex    rel.   Manhattan   Ry.   Co.)    v. 

Barker,       149,       3854,       3875, 

3876,    3877,    3882. 
(ex  rel.  King-)   v.  Barnes,  334. 
(ex  rel.  Choate)   v.  Barrett,  321. 
v.  Bartow,  850. 
(ex    rel.    Cook)    v.    Becker,    541, 

3178. 
v.  Beebe,  3164. 
v.  Bennett,   832. 
(ex    rel.    Day)    v.    Bergen,    340, 

3220,   3243,   3853. 
(ex    rel.    Carleton)    v.    Board    of 

Assessors,   550. 
(ex  rel.  Feeny)  v.  Board  of  Can- 
vassers, 3614. 
(ex    rel.    Allison)     v.    Board    of 

Education,    3042. 
(ex    rel.    Hoffman)    v.    Board    of 

Education,  282,  3785,  3788. 
(ex   rel.   McMahon)    v.   Board   of 

Excise,    124,    206. 
(ex  rel.  Hanrahan)   v.   Board  of 

Metropolitan     Police     Dist., 

2354. 
(ex  rel    Gambling)   v.   Board  of 

Police,    123. 
(ex  rel.  Piatt)  v.  Board  of  State 

Canvassers,  3640. 
(ex  rel.  Lee)  v.  Board  Sup'rs  of 

Chautauqua  County,   849. 
(ex  rel.  Hill)  v.  Board  of  Sup'rs 

of  Wayne  County,  160. 
(ex  rel.  Pond)  v.  Board  of  Trus- 
tees   of    Saratoga    Springs, 

229. 
(ex  rel.    Eckerson)    v.    Board   of 

Trustees  of  Village  of  Hav- 

erstraw,    97. 
v.  Bodine,    2188,    2189,    2192. 
v.  Bootman,    3009. 
v.  Bouchard,   1589. 
(ex  rel.    Roberts)    v.   Bowe,   733, 

1336. 
v.  Brandeth,   2225. 
V.  Braun,   2245,  2246. 
(ex  rel.  Geery)   v.  Brennan,  235, 

320. 
v.  Briggs,    1086. 
(ex   rel.   McKinch)    v.    Bristol  & 

R.   Turnpike   Road,    41. 
V.  Brooks,  549,   2261. 
(ex  rel.  Galsten)  v.  Brooks,  625. 
(ex  rel.  Whillis)   v.   Brotherson, 

250. 
v.  Brow,    2239,    2322. 
v.  Brown,   2232,   2234. 
(ex  rel.  Brush)  v.  Brown,  636. 


People    (ex    rel.    Duff  us)    v.    Brown, 

324. 
v.  Bruff,  107. 
(ex    rel.     Byrne)     v.     Brugman, 

1768. 
(ex  rel.  Joyce)  v.  Brundage,  222. 
v.  Buchanan,   2251. 
v.  Budd,   117. 

v.  Buddensieck,    2217,    2370. 
v.  Buell,   4128. 
v.  Bull,   722. 
v.  Bunn,    3164,    3167. 
v.  Burgess,    695. 
(ex    rel.    Morgenthau)    v.    Cady, 

536,  538,  539,  545. 
(ex    rel.    Gilmore)    v.    Callahan, 

831. 
(ex   rel.    Forest   Commission)    v. 

Campbell,  3874. 
(ex    rel.    Gaston)    v.    Campbell, 

1313. 
(ex  rel.  Harlan  &  Hollingsworth 

Co.)    v.    Campbell,    2368. 
v.  Cannon,   1677. 
v.  Carnley,    3184. 
v.  Carpenter,  2198,   3201. 
(ex  rel.  Lardner)  v.  Carson,  275' 

3603,  3635. 
v.  Casey,  2245. 
v.  Central    City    Bank,     11,     626, 

634,    1629. 
v.  Central  R.   Co.   1092. 
(ex  rel.  Goodrich)   v.  Chatauqua 

Common  Pleas,  4005. 
(ex    rel.    Kilmer)    v.    Cheritree, 

237. 
v.  Church,    545,   1642,   2379. 
v.  City  Bank  of  Rochester,  16. 
v.  City    of    New    York,    60.    270, 

905,   1000,   1576,    1623. 
(ex  rel.  Houston)  v.  City  of  New 

York,  32. 
(ex.     rel.    Moulton)     v.    City    of 

New  York,    695. 
v.  Clark,    115,   1286,   1292,   1295. 
(ex  rel.  Van  Buskirk)   v.  Clark, 

3178. 
v.  Clarke,    457. 

(ex   rel.   Clarke)   v.   Clarke,   237. 
(ex   rel.   Debenetti)    v.    Clerk   of 

Marine  Court,   816. 
(ex  rel.   Wright)   v.  Coffin,   3593. 
v.  Colborne,    2993,    3038. 
v.  Cole,    2596. 
(ex    rel.    Lazarus)    v.    Coleman, 

4155. 
v.  Coler,  3005. 
(ex     rel.     Mulligan)     v.     Collis, 

3789,  3801. 
v.  Columbia      Car      Spring     Co., 

1654. 
v.  Columbia       Common       Pleas, 

2735. 
v.  Commercial   Bank,    3656. 
(ex   rel.    Fairchild)    v.    Commis- 
sioners  of  Dept.    of   Fire   & 

Bldgs.,   3676. 
(ex  rel.  Purdy)   v.   Commission- 
ers   of    Highway    of    Town 

of   Marlborough,    910. 
(ex   rel.    New  York   &   H.    R.    R. 

Co.)     v.     Commissioners     of 

Taxes,  3616. 


TABLE  OF  CASES. 


4287 


[references  are  to  pages.] 


People    (ex   rel.    Reynolds)    v.    Com- 
mon Council  of  Buffalo,  278. 
(ex  rel.  Davis)  v.  Compton,  323. 
v.  Connor,   231. 

v.  Continental  L.    Ins.   Co.,   3048. 
v.  Cook,   11,  364;   564,   2303. 
(ex   rel.    New    York   Cent.    &  H. 

R.  R.  Co.,)   v.  Cook,  704. 
(ex    rel.    Schurz)    v.    Cook,    3925. 
(ex  rel.  Nichols)   v.  Cooper,  237. 
(ex  rel.  Trainer)  v.  Cooper,  237. 
v.  Corner,    971. 
v.  Coughtry,    192S. 
(ex     rel.     Bendon)      v.     County 

Judge    of    Rensselaer,    14. 
(ex  rel.  Bray)   v.  County  Sup'rs, 

3956. 
(ex    rel.    Illingworth)    v.    Court 

of   Oyer  &   Terminer,   322. 
(ex    rel.    Munsell)    v.    Court    of 

Oyer   &   Terminer,    317,   319, 

320,   322. 
(ex  rel.  Phelps)  v.  Court  of  Oyer 

&  Terminer,   2243. 
(ex    rel.    Barnes)     v.     Court    of 

Sessions,   323. 
v.  Covell,  3177. 
v.  Cowan,    3271,    3273. 
(ex  rel.  Crouse)    v.  Cowles,   341, 

1377. 
v.  Cox,   2248. 

(ex  rel.  Cunliffe)    v.  Cram,   2063. 
(ex    rel.    Lord)    v.    Crooks,    998, 

1006. 
(ex    rel.    Dinsmore)     v.    Croton 

Aqueduct  Board,  548. 
v.  Crounse,   2273. 
(ex  rel.  Public  Charities  &  Cor- 
rection   Com'rs)    v.    Cullen, 

149,  3608. 
(ex  rel.  Warschauer)  v.  Dalton, 

3854. 
(ex    rel     Standard    Gas    L.    Co.) 

v.  Daly,   3727. 
(ex  rel.  Com'rs  of  Public  Chari- 
ties   &   Correction)    v.    Dan- 
do,  671. 
v.  Daniell,    2148. 

(ex  rel.  Jones)  v.  Davidson,  330. 
(ex     rel.     Miller)     v.     Davidson, 

1306,    1307. 
(ex     rel.     Tully)     v.     Davidson, 

1360. 
v.  Davis,   1980,   2254. 
v.  Decker,    2199. 
(ex   rel.    Town   of  Colesville)   v. 

Delaware     &     Hudson     Co., 

3878. 
v.  Dennison,    971,    977,    981,    1093, 

3919. 
v.  Diamond,  1938. 
(ex     rel.     Kirtland)     v.     Dillon, 

2058. 
v.  Dispensary  &  Hospital  Soc.  of 

Woman's    Inst.,    1071. 
(ex  rel.  Cahoon)  v.  Dodge,  2383. 
v.  Dohring,   124,  232. 
(ex    rel.     Collins)     v.     ponohue, 

2079,   2086,  2099. 
(ex    rel.     Ireland)     v.    Donohue, 

190. 
<ex  rel    Lower)  v.  Donovan,  106, 

236,    239. 


People  v.  Dooley,   99. 

(ex  rel.  Liatto)    v.  Dunn,   718. 
(ex    rel.    Brunett)     v.     Dutcher, 

189. 
(ex   rel.    Negus)    v.    Dwyer,    321, 

3640. 
(ex   rel.   Negus)   v.   Dyer,    190. 
v.  Easton,    3163,    3164. 
(ex    rel.     Meakin)     v.    Eckman, 

997. 
(ex    rel.    Morris)     v.     Edmonds, 

228. 
(ex    rel    Roosevelt)     v.     Edson, 

201,    603,    1573,    1589,    1590. 
(ex    rel.    Gemmill)    v.    Eldridge, 

647,   3724,    3998. 
v.  Empire    Mut.     Life    Ins.     Co., 

2634. 
v.  E.  Remington  &  Sons,  1650. 
(ex    rel.    Steingoetter)    v.    Erie 

County      Canvassers,      36  57, 

3658. 
(ex  rel.  Phelps)  v.  Fancher,  330. 
v.  Fargo,    3200. 

(ex  rel.  Nash)   v.  Faulkner,  390. 
v.  Featherly,   2655,    3798. 
(ex  rel.  Rochester  Lamp  Co.)   v. 

Feitner,    3639. 
(ex   rel    Tyng)   v.   Feitner,   1688. 
v.  Ferris,    218S. 
v.  Fields,    249. 
v.  Fire    Com'rs     of    New     York, 

2962. 
(ex    rel.    Macdonnell)    v.    Fiske, 

145. 
v.  Fitchburg     R.     Co.,     37,     2903, 

3006. 
(ex  rel.    Patrick)    v.   Fitzgerald, 

2232. 
v.  Flagg,   3008,   3011. 
v.  Fleming,      3156,      3166,      3176, 

3177. 
(ex  rel.  Taylor)  v.  Forbes,  2233, 

2234. 
(ex     rel.     Krulish)      v.     Fornes, 

3859. 
(ex  rel.  Sheridan)   v.  French  14. 
v.  Fulton  County  Sup'rs.,  3042. 
(ex  rel.  Davis)   v.   Gardner,  222. 
v.  Genesee  Valley  Canal  R.   Co., 

3013. 
v.  Genet,  2243. 
v.  Gill,   3198,   3213. 
(ex   rel.   N.   Y.    Soc.   for  Preven- 
tion of  Cruelty  to  Children) 

v.  Gilmore,  15,  322,   324,  330, 

3938,'  3945. 
v.  Girard,  1086. 
v.  Giroux,    3011. 
V.Glasgow,  2695,   2696,   2743. 
v.  Globe  Mut.  Life  Ins.  Co.,  1649. 
v.  Goff,    27 71'. 
v.  Goodwin,    1274. 
v.  Gorman,    3209. 
(ex    rel.    Borst)    v.    Grant,    3059, 

3060. 
(ex  til.  Clark)  v.  Grant,  3212. 
(ex   rel.   Cohen)    v.    Grant,    1350. 
(ex  rel.   Ehrlich)  v.  Grant,  3156. 
(ex  rel.   Post)    v.   Grant,   1619. 
(ex     rel.     Rodding)      v.     Grant, 

1350. 
(ex  rel.  Demarest)  v.  Gray,  652. 


42SS 


TABLE  OP  CASES. 


[REFERENCES  are  to  pages.] 


People  (ex  rel.  Stephens)  v.  Green- 
wood Lake  Ass'n  647. 
V.  Groat,   389.    391. 
v.  (irout,   3265. 
v.  Haas,    4057. 
(ex    rel.    Hogan)    v.    Haberstro, 

28 
v.  Had'den,   172S. 
(ex  rel.   Hatzel)    v.  Hall,  40. 
v.  Hamilton,    3010. 
v.Hammond,   679. 
(ex  rel.  Bentley)  v.  Hanna,  237. 
v.  Haskins.    3156,    3159. 
v.  Hayes,   358. 
v.  Haynes,  2255. 
(ex  rel.  Harvey)  v.  Heath,  16. 
(ex    rel.    Cashman)    v.    Heddon, 

3S60. 
v.  Hertle,    3005. 
v.  Hillsdale       &       C.       Turnpike 

Road,   41. 
v.  Hoch,   378S. 
v.  Hodnett,    2961. 
(ex    rel.    Blake)     v.    Holdridge, 

2184. 
v.  Hoogherk,    2272. 
v.  Hopson,   3121. 
(ex     rel.     Bush)     v.     Houghton, 

38S5. 
(ex  rel.   Burby)  v.  Howland,   99. 
(ex    rel.    "Williams)    v.    Hulburt, 

647,    3282,    3346. 
v.  Hydrostatic  Paper  Co.,   814. 
(ex  rel.  Ottman)  v.  Hynds,  1360. 
v.  Ingersoll,   1360. 
v.  Jackson,   564,   2265. 
(ex  rel.  Woolf)    v.  Jacobs,   14. 
v.  Jefferey,   2256. 
(ex  rel.  Durant  Land   Imp.  Co.) 

v.  Jeroloman,  3873. 
v.  Johnson,    2701. 
(ex    rel.    Wyman)     v.    Johnson, 

812. 
(ex     rel.     Burnham)     v.     Jones, 

3650,   3656. 
(ex    rel.    Day)    v.    Jones,    3287, 

3339. 
v.  Judges     of     Albany     Mayor's 

Court,  2950. 
(ex  rel.  Works)  v.  Judges  of  the 
Court     of     Common     Pleas, 
1359,    2278. 
(ex    rel.    Mallard)    v.    Judges    of 

Madison    County,    3957. 
(ex    rel.    Firemen's    Ins.    Co.    of 
Baltimore)     v.     Justices     of 
City   Court,   206,   746. 
v.  Justices      of      Marine      Court, 

3593. 
(ex    rel.    Egan)    v.    Justices    of 
New  York  Marine  Ct.,   3637, 
3642. 
v.  Kearney,  105. 

(ex     rel.     Brooklyn     Industrial 
School    Ass'n)     v.    Kearney, 
330. 
(ex  rel.  Wallkill  Vallev  R.  Co.) 

v.  Keator,   649,  3695. 
v.  Keenan,    2793. 
(ex  rel.  Guibord)  v.  Kellogg,  17 
(ex  rel.  Caldwell)  v.  Kelly,  619 
(ex  rel.   Hackley)   v.   Kelly,   320, 
330. 


People    (ex   rel.    Kearney)    v.    Kelly, 
3335. 
(ex    rel.    Rittenman)    v.    Kelly, 

1302. 
(ex   rel.   Ward)    v.   Kelsey,   2312. 
v.  Kemmler,    2319. 
v.  Kent,   2772. 
v.  Keyser,   2838. 

(ex  rel.   Shook)   v.   Kilburn,   361. 
v.  Kingsland,    3306. 
v.  Kingsley,  357,   358,   1931,   1946, 

1960. 
(ex  rel.  Augerstein)    v.  Kinney, 

1683. 
v.  Knickerbocker    Life    Ins     Co., 

2075. 
v.  Lamb,  266,  2201. 
v.  Lammerts,  2180. 
(ex  rel.  Hatch)   v.  Lantry,  2072. 
v.  Leipzig,   3317. 
(ex    rel.    McDonald)    v.    Leubi- 

scher,   114,  1774. 
v.  Levy,   3269. 
v.  Lewis,   3032. 
v.  Livingston,    457. 
(ex    rel.    Dailey)    v.    Livingston, 

2345,   3911. 
(ex  rel.  Coler)  v.  Lord,  3874. 
(ex  rel.  Stevens)  v.  Lott,  3975. 
v.  Lowber,  671. 
v.  Lumb,   3640. 
v.  Luther,    3168. 

(ex  rel.  Sweet)    v.  Lyman,   3S64. 
v.  Lynch,    3173. 

(ex  rel.  Kenfield)   v    Lyon,  2226. 
v.  McAdam,    3151,   3368. 
v.  McCumber,      824,      1072,      1074, 

1075,    1078,    1080. 
v.  McDonald,  1694. 
(ex    rel.    Kilmer)    v.    McDonald, 

237. 
v.  McGinnis,  2553. 
v.  McGoldrick,   3325. 
v.  McGonegal,   2316. 
(ex   rel.    Stemmler)    v.   McGuire, 

2055,  2708. 
v.  McKane,    162. 
(ex     rel.    Gaynor)     v.     McKane, 

122,    337,    1558,    1590. 
v.  McLaughlin,     17,     2182,     2239, 

2347,   2348. 
v.  McQuade,    2196. 
V.Manhattan  R.  Co,  1065. 
v.  Manhattan      Real     Estate     & 

Loan  Co.,   3652. 
(ex    rel.    Brownson)    v.    Marine 

Court  of  City  of  N.  T.,  125. 
v.  Marks,  2277. 
(ex  rel.   Stearns)   v.  Marr,   4065, 

4066,   4067,   4135,   4174. 
(ex  rel.  Nelson)   v.  Marsh,   14. 
v.  Marston,    3321,    3337. 
v.  Martin,    2024. 
v.  Masonic    Guild    &    Mut.    Ben. 

Ass'n,   3042. 
v.  Mather,   2233,   2237. 
v.  Mayor's      Court      of      Albany, 

2357. 
v.  Mead,   3346. 
v.  Mercantile     Credit     Guaranty 

Co.,    3964. 
v.  Metropolitan       Telephone      & 
Telegraph  Co,   2154,   2164. 


TABLE  OF  CASES. 


4289 


[references  are  to  pages.] 


People    (ex   rel.   Baldwin)    v.   Miller, 

2607. 
(ex   rel.    Essex   County)    v.   Mil- 
ler, 4076. 
(ex   rel.   N.   Y.    Realty   Corp.)    v. 

Miller,  4083. 
v.  Mills,  4152. 
v.  Minnaugh,    2324. 
v.  Moett,   2348. 
V.  Mollineux,   2218,   2219. 
(ex  rel.  Jewett)  v.  Monroe  Com- 
mon Pleas,  4005. 
(ex     rel.     Spencer)     v.     Monroe 

Common  Pleas,   4005. 
v.  Montgomery    Common    Pleas, 

3091. 
v.  Moore,   2262. 
v.  Moss,    2572,    3643. 
v.  Murphy,    2259,    2266. 
(ex  rel.  Allen)  v.  Murray,  266. 
v.  Mutual    Endowment    &    Acci- 
dent Ass'n,   38. 
v.  Mutual  Gas  Light  Co.,  1776. 
v.  Muzzy,    3170. 
v.  Nash,    694,    695. 
v.  National    Mut.    Ins.    Co.,    1642, 

3108,   3117. 
v.  National  Trust  Co.,  605,  606. 
v.  Nelson,   3150. 

(ex  rel.  Johnson)  v.  Nevins,  712. 
(ex  rel    Chanler)  v.  Newburger, 

4066. 
v.  New    York   Cent.    R.    Co..    453, 

2919,    3021,    3631,   3636. 
v.  New    York    Cent.    U.    G.    Ry. 

Co.,    1068.    1082. 
v.  New    York    Cent.    &   H.    R.    R. 

Co.,   589,  608. 
v.  New  York  City,   2817. 
v.  New  York  City  Underground 

Ry.   Co.,   841. 
v.  New  York  Common  Pleas,  201. 
(ex    rel.    Baker)    v.    New    York 

Common   Pleas,    89. 
(ex   rel.    Coulter)    v.    New   York 

Common   Pleas,    2740. 
(ex    rel.     Whitmarsh)     v.     New 

York    Common    Pleas,    1370. 
v.  New  York  Juvenile  Guardian 

Soc,   1064. 
v.  New     York     Produce     Exch., 

2934. 
(ex    rel.    James)    v.    New    York 

Soc.  for  Prevention  of  Cru- 
elty to  Children,   1884. 
v.  New    York    Super.     Ct.,    2704, 

2706. 
v.  New   York   &   S.   I.   Ferry  Co., 

3013. 
(ex   rel.    City    of  New   York)    v. 

Nichols,    108,    158,    160,    167, 

168,  584. 
(ex    rel.    Swinburne)    v.    Nolan, 

870,  3759. 
v.  Northern     R.     Co.,     168.     571, 

1084,   1916. 
v.  Norton,    158,    1632. 
v.  Nugent,    194.    195. 
(ex    rel.    Morse)     v.    Nussbaum, 

3627,  3642. 
v.  Oakes,    3036.    3037. 
(ex     rel.     Latorre)     v.     O'Brien, 

1273. 

N.  Y.  Prac— 269. 


People  v.   Odell,   105. 

(ex  rel   Levenson)    v.   O'Donnel, 

3640. 
v.Oliver,   3280,   3281,   3289,   3301, 

3339. 
(ex  rel.  Fuller)   v.  Oneida  Com- 
mon Pleas,   1883. 
v.  O'Neil,  722,  2319. 
v.  Onondaga   C.   P.,    3087. 
v.  Open    Board    Stock    Brokers' 

Bldg.  Co.,  459. 
(ex    rel.     Stebbins)     v.     Orleans 

Common    Pleas,    4005. 
(ex  rel.  Hoyle)   v.  Osborne,   237. 
v.  Page,   3010. 

(ex  rel.  Tuell)   v.  Paine,   4081. 
v.  Parish,   2276. 
(ex   rel.    Parr)    v.    Parr,    237. 
(ex    rel.     Harriman)    v.    Paton, 

370,    578,    579. 
(ex  rel.  Smith)  v.  Pease,  185. 
v.  Peck,   2566. 
(ex    rel.     Bank    of    Monroe)     v. 

Perrin,   544. 
(ex    rel.    Van    Allen)    v.    Perry, 

3994. 
v.  Phillips,    1294. 
v.  Piatt,   355,   357,  2206. 
(ex     rel.     Turner)     v.     Plimley, 

2183. 
(ex   rel.    McLaughlin)    v.    Police 

Com'rs   of   Yonkers,    4053. 
(ex  rel.  Slaight)  v.  Potter,  1980. 
(ex     rel.     Oak     Hill     Cemetery 

Ass'n)   v.  Pratt,   3956. 
v.  Priori,   2233. 
(ex     rel.      Keene)      v.      Queen's 

County   Sup'rs,    3964. 
(ex    rel.    O'Conner)    v.    Queen's 

County   Sup'rs,    3874. 
v.  Quigg,   2139. 
(ex     rel.     Morris)      v.     Randall, 

2023,   3305,   3353,    3964. 
v.Ransom,       3156,      3158,       3170, 

3176,    3178. 
v.  Rathbun,    3175,    3179. 
v.  Rector,    2235. 
v.  Rector,        etc.,        of       Trinity 

Church,    1846,    1848. 
(ex  rel.  Knapp)  v.  Reeder,  1477, 

3121. 
v.  Reilly,  3205. 
(ex    rel.    Barton)    v.    Rensselaer 

Ins.   Co  ,    488. 
(ex  rel.  Piatt)  v.  Rice,  330,  337, 

338. 
(ex  rel.  Aspinwall)  v.  Richmond 

County  Sup'rs,    3903. 
(ex    rel.    Feeny)     v.     Richmond 

County    Canvassers,    3614. 
(ex    rel.    Fries)     v.    Riley,     322, 

323. 
(ex  rel.  N.  Y.  Loan  &  Imp.  Co.) 

v.  Roberts,  451,   455,   483. 
(ex  rel.  Lord)  v.  Robertson,  547. 
(ex  rel.  Keenholts)  v.  Robinson, 

2089. 
v.  Rochester  Dime  Sav.   &  Loan 

Ass'n,  3021,  3024. 
v.  Rockaway     Beach     Imp.     Co , 

3015. 
(ex  rel.  Metropolitan  St.  R.  Co.) 

•v.  Roesch,   3593. 


4290 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


People    (ex    rel.    Mosher)    v.    Roosa, 

1  S  I  !». 

v.  Uosendale,  2961. 
v.  Rouse,  356,  1931. 
(ex    rel.    Crane)    v.    Ryder,    S30, 

847. 
(ex    rel.     Thomas)     v.     Sackett, 

3650,  3656,   3911. 
v.  St.  Louis  cV  S.  F.   Ry.  Co.,  2572. 
v.  St.  Nicholas  Bank,   1384,   1432, 

1483,   1621,   3656. 
(ex    rel.    Lincoln)    v.    Saratoga 

Common  Pleas,  4001. 
(ex    rel.     Rogers)     v.     Saratoga 

Common  Pleas,   4005. 
(ex    rel.    Merriam)     v.     Schoon- 

maker,   179. 
(ex    rel.    Kellogg)    v.    Schuyler, 

1488. 
(ex    rel.     Shaw)     v.    Scott,    673, 

1360. 
v.  Seaton,    3096. 
v.  Seldner,  2254. 
v.  Sessions,   573. 
v.  Severance,    2219. 
v.  Shea,    162. 
v.  Sheldon,  2352. 
v.  Sheppard,   2018. 
v.  Sheriff  of  Broome,  3167,  3177. 
(ex  rel.  Covle)  v.  Sherwood,  221. 
v.  Slanson,  3883. 
v.  Smith,   2324,   2961. 
v.  Snaith,   1317,   1320,   1953. 
(ex    rel.    McCabe)    v.    Snedeker, 

4072,   4078. 
v.  Snyder,  831. 

(ex  rel.  Waldron)  v.  Soper,  136. 
v.  Spalding,    549. 
(ex   rel.  Mever)   v.   Special   Ses- 
sions,  2276. 
v.  Speed,  2992. 
v.  Starkweather,    449,   2068. 
v.  Stephens,    3662,   3841. 
v.  Stocking,   224. 
(ex  rel.   Backus)   v.   Stone,   1987. 
(ex  rel.  Mosher)  v.  Stowell,  538. 
v.  Strait,  3S62. 
v.  Strauss,   2914. 
(ex    rel.    Davis)    v.    Sturtevant, 

122,   337,  1589. 
v.  Sullivan,   111. 
(ex     rel.     Boyden)     v.     Superior 

Court  of  City  of  N.  Y.,  1359. 
v.  Supervisors  of  Niagara,  2992. 
(ex  rel.  Kenyon)   v.  Sutherland, 

536,    539,    541,    544. 
<ex    rel.    Village    of   Brockport) 

v.   Sutphin,  3882. 
(ex  rel.  Wise)  v.  Tamsen,  326. 
(ex    rel.    Bovlston)     v.    Tarbell, 

633,   3710. 
-v.  Taylor,    2257. 
(ex     rel.     Judson)     v.     Thacher, 

3618. 
(ex    rel.    Dadv)    v.    Thirty-First 

Ward   Sup'r,    3837,    3853. 
v.  Thompson,   2192. 
(ex   rel.   Roddy)    v.   Tioga  Com- 
mon Pleas,  536. 
<(ex  rel.   French)   v.  Town,   3656. 
V.  Town    Auditors,    2992. 
v.  Trinity  Church,  454,   457. 


People    v.    Troy    Steel    &    Iron    Co., 
2075,  3656. 
v.  TubbS,    1366. 
v.  Tunnieliff,  945. 
v.  Turner,   449. 

v.  Tweed,   61,   357,  839,   861,  1086, 

1269,    1274,    1302,    1334,    1914, 

2054,    2057,   2058,   2190. 

(ex  rel.  McGuire)  v.  Ulrich,  694. 

(ex  rel.   Bray)   v.  Ulster  County 

Sup'rs,    3956. 
V.Ulster  &  D.  R    Co.,  1055,  3015. 
(ex  rel.   Garling)    v.   "Van   Allen, 

96. 
(ex    rel.   Cauffman)    v.   Van    Bu- 

ren,   1494,   1496,   1570. 
v.  Van    Dusen,    2.312. 
v.  Van    Hoesen,    3204,    3206. 
v.  Van  Rensselaer,  454,  457. 
(ex   rel.   Jacobus  v.    Van   Wyck, 

3873. 
v.  Vermilyea,    2031. 
(ex    rel.    Smith)     v.    Village    of 

Nelliston,  3924. 
(ex  rel.  Hawes)   v.  Walker,   905. 
(ex  rel.  Martin)  v.  Walters,  784. 
(ex  rel.  Ward)   v.  Ward,  237. 
(ex    rel.    Isaacs)    v.    Warden    of 

District   Prisons,    162. 
v.  Warner,    3268,    3320. 
(ex    rel.    Tomb)    v.    Washington 

Common    Pleas,    4005. 
v.  Watson,    2256. 
v.  Wayman,   2323,   2338. 
v.  Webster,    2246,    2321. 
v.  Welch,   137. 
v.  Wells,  70,   71,  356. 
v.  White,    2008,    3911. 
(ex  rel.  Wilcox)   v.  Wilcox,  237. 
(ex   rel.   Burroughs)    v.   Willett, 

32. 
v.  Wood,  831. 
v.  Williamsburgh     Turnpike 

Road  &  Bridge   Co.,   2361. 
v.  Windholz,   1571. 
v.  Wood,    2566. 

(ex  rel.  Rumsey)  v.  Woods,  884. 
(ex   rel.   Beller)    v.  Wright,   548, 

1934,    1938. 
(ex   rel.    Meech)    v.   Yates   Com- 
mon Pleas,   652. 
(ex   rel.   Arfken)    v.   York,    4156. 
v.  Young,  162,  196. 
v.  Youngs,    162. 
People's      Bank     v.     St.     Anthony's 
Roman      Catholic      Church, 
1562. 
v.  Thompson,   279. 
People's  R.  Co.  v.   Syracuse  B.,  etc., 

R.  Co.   1560. 
People's  Trust  Co.  v.  Harman,  186. 
Pepin   v.    Lachenmeyer,    221,    2228. 
Percival    v.    Hickey,    139,    1742. 

v.  Jones,  3193. 
Percy,  In  re,   253. 
Percy  v.   Seward,   1694,  1699. 
Perez   v.    Sandrowitz,    3877. 
Per  ham  v.  Noel,   2246. 
Peri  v.  New  York  Cent.  &  H.   R.  R. 

Co,   16,   296,   298,   386. 
Perkins    v.     Brainard     Quarry     Co., 
1092,  2710,  2734,  2735,  2972. 


TABLE  OF  CASES. 


4291 


[references  are  to  pages.] 


Perkins  v.  Butler,  2130. 

v.  Commercial  Advertiser  Ass'n, 
1929. 

v.  Heert,'  3014,   3021. 

v.  Hinman,    1914. 

v.  Kendall,    3279. 

v.  Mead,  794. 

V.  Merchants'  Lithographing  Co., 
1694,    169S,    1699. 

v.  Sloeum,   71,   75. 

v.  Stimmel,   957,  1090. 

v.  Taylor,    337. 

v.Warren,    1568.    1569. 

v.  Whitney,   2027,    3018. 
Perlman  v.  Bernstein.  4136. 

v.  Gunn,    4056,    4102. 
Perlmutter   v.    Stern,    1874. 
Perls  v.   Metropolitan  Life  Ins.   Co., 

989. 
Perrigo  v.  Dowdall,   2948.   2949. 
Perrin     v.     Prudential     Ins.     Co.     of 

America,    2300. 
Perrine  v.  Hotchkiss,   497,   49S,   3942. 

v.  Ransom  Gas  Mach.  Co.,  749. 
Perrior  v.   Peck,   494. 
Perrotean  v.  Johnson,  63. 
Perrow  v.   Lindsay,   1851. 
Perry  v.   Boomhauer,   1935. 

v.  Chester,   304,   396. 

V.  Dickerson,   53,   54. 

v.  Erie    Transfer   Co.,    132,    4054. 

v.  Fries,  4073. 

v.  Levenson,      991,      1029,      2557, 
4112. 

v.  Livingston,   2941,   2975. 

v.  Mitchell,   35S. 

v.  Moore,    2556. 

v.  Smith,    1327,    1328.. 

v.  Tynen.   2112. 

v.  Village  of  Potsdam,   4163. 

v.  Volkening,    1576. 

v.  Williams,    4073,    4077. 
Persch  v.   Weideman,  4125,  4127. 
Person  v.  Grier,  730,   1310. 
Persons  v.  Buffalo  City  Mills,  799. 

v.  Hawkins,   2298. 
Persse  &  B.  Paper  Works  v.  Willet, 

597,  1887. 
Peru  Iron  Co.,  Ex  parte,  3164,   3172. 
Perzel  v.   Tousey,  247. 
Pesant  v.  Garcia,  1587. 
Pescia    v.    Societa    Co. -Op.    C.    F.    B, 

3861,   4161. 
Pessini  v.   Wilkins,   2102,  3674. 
Pester,  Matter  of,   3337. 
Peterkin  v.  Cotheal,   2630. 
Peters  v.  Carr,  3083. 

v.  Delaplaine,  470. 

v.  Diossy,    4012. 

v.  Foster,   1*8,    140. 

v.  Kerr,  3328. 
Peterson  v.  Brockelmann,   205,  1529. 
Peterson,  Matter   of,   250,   251. 
Peterson  v.  Felt,  3631. 

V.  Swan,   2679,   3608,   3663. 
Petrakion   v.   Arbelly,    827,    954,    981, 

2935. 
Petree  V.  Lansing,  416. 
Petrie,   Matter  of.    529,    530. 
Petrie  v.   Fitzgerald,   938,    1310,  3783. 

v.  Hamilton   College,  3882. 

v.  Ogdensburgh   &  L.   C.   R.   Co, 
2344. 


Petrie  v.  Petrie,  3862. 

v.  Trustees  of  Hamilton  College, 
2643,   2772,  2810. 

v.  Williams,    2188. 
Petshaft   v.   Lubow,    1337. 
Pettee  v.  Pettee,  2031. 
Pettengill  v.  Mather,  2838. 
rvttibone   v.    Drakeford,    3262,    3370, 

3432. 
Pettis   v.   Pier,    2342. 
Pettit   v.   Pettit,    235,    2668. 
Petty  v.   Emerv,   4091   4116. 

v.  Metropolitan  St.   R.  Co.,   2119. 
Peugnet  v.   Phelps,   159. 
Peyser  v.  Coney  Island  &  B.  R.  Co., 
2733. 

v.  McCormack,   854,    887. 

v.  Wendt,   1677,   2593,   2598,    3081. 
Pfandler  Barm,  etc.,  Co.  v.  Pfandler, 
2983. 

v.  Sargent,  2985. 
Pfandler   Process   Fermentation   Co. 

v.    McPherson,    846. 
Pfeffele  v.  Second  Ave.  R.  Co,  2334. 
Pfeffer  v.  Buffalo  R.  Co.,  3716. 
Pfeifer  v.  Supreme  Lodge,  1891. 
Pfister  v.   Stumm,   1993,   1996. 
Pfiuger  v.  Cornell,  3367. 
Pfluke   Co,   V.   G.   v.   Papulias,    1399, 

1400,  1517,   1525. 
Pfohl  v.   Sampson,   1558. 
Phalen,   Matter   of,    3975. 
Phalen    v.    Dingee,    411. 

v.  Roberts,    867. 
Pharis    v.     Gere,     1045,     2718.     2719, 

2741,   3612. 
Phelan    v.    Douglass,    696. 

v.  Rycroft,"  1038. 
Phelps,  Matter  of,  3074,  3077. 
Phelps  v.   Baker,   2818. 

v.  Ball,   3091. 

v.  Barton,    3211. 

v.  City  of  New  York,  2161. 

v.  Cole,    88,    1647.    2951. 

v.  Ferguson,  1072. 

v.  Maxwell,    1321. 

v.  Phelps,    764,    807,    895. 

v.  Piatt,   1846. 

v.  Swan,  3847. 

v.  Yicher,   3871. 

v.  Wood,   2599. 
Phenix    v.    Baldwin,    1767,    2734. 

v.  Townshend,   1886. 
Philadelphia     Steamship     Dock     Co. 
v.    Lorillard    Steamship    Co.,    1679. 
Philbin  v.  Patrick,  2667. 
Philbrick  v.  Boyd,   1943. 
Philbrook  v.  Kellogg,  3041. 
Philipe  v.  Levy,   2072. 
Philips   v.    Blagge,    563. 

v.  Caswell,    4011. 

v.  Germania   Bank,    224. 

v.  Prescott,    915. 

v.  Wicks,   569. 
Phillips   v.   Brown,   2206. 

v.  Curtis,    183S,    1846. 

v.  Equitable     Life     Assur.     Soc, 
3724. 

v.  Germania   Mills,    1841,    1854. 

v.  Gorham,   820. 

v.  Hagadon,    1005. 

v.  Lewis,    2360. 


4292 


TABLE  OF  CASES. 


[REFERENCES   ARE   TO   PAGES.] 


Phillips  v.  Metropolitan  El.  Ry.  Co., 

2275. 

v.  New  York  Cent.  &  H.  R.  R. 
Co.,  2338,  2340,  2341. 

v.  O'Connor,  3378. 

v.  Sniffer,  3158,  3161,  3186. 

v.  Suydam,   1023. 

v.  Wheeler,   595,  2831,   3135. 

v.  Winne,  753. 

v.  Wortendyke,     248,     673,     1302, 
1343. 
Phinney   v.    Broschell,    239,    619,    620. 
Phipps  v.    Carman,    1915,    2626,    3954. 

v.  Van  Cott,  618. 
Phoenix  v.  Dupuy,   1788,   1791. 

V.  Hill,   2118. 
Phoenix  Bank  v.   Donnell,   997,  1006. 
Phoenix     Bridge     Co.     v.     Keystone 

Bridge  Co.,   1614,   1615. 
Phoenix    Fire    Ins.    Co.    v.    Mowau, 

1370. 
Phoenix    Foundry    &    Mach.    Co.    v. 
North  River  Const.  Co.,  1589,  1596. 
Phonoharp  Co.  v.  Stobbe,  887. 
Phvfe  v.   Riley,   3180,  3181. 
Piatti,  Matter  of,  3048. 
Picard  v.  Lang,  2301,  2721,  3891. 
Pickard  v.   Pickard,    260. 

v.  Tencer,    300,    301. 
Pickersgill  v.  Read,  36S8,  3690,  3720, 

3725. 
Pickert  v.  Eaton,  2837. 
Pickett   v.   Leonard,    529. 

v.  Metropolitan     Life     Ins.     Co., 
957. 
Pickhardt  v.  Antony,   1433. 
Pickrell  v.  Mendel,  4123. 
Pidgeon  v.  Oatman,  15-77. 
Piehl  v.   Albany    R.    Co.,    2707. 
Piepgras  v.   Edmunds,    3193. 
Pierano  v.  Merritt.    4035. 
Pierce   v.    Brown,    2941. 

v.  Delamater,   232. 

v.  Fuller,  3142. 

v.  Lee,   2960. 

V.Lyon,    1696. 

v.  Metropolitan    St.   R.   Co.,   2694. 

v.  Tuttle,    3789. 

v.  Voorhees,    2579,    2591. 

v.  Waters,    280. 
Piering  v.   Henkel,    262. 
Pieris,   In  re,    306,    4065. 
Pierrepont,    Town    of,    v.    Lovelass 

2990. 
Pierret   v.   Moller,   2908. 
Pierson  v.   Cronk,    1051,   2082. 

v.  Drexel,   2579,   3001. 

v.  Freeman,    542,    1320,   1438. 

v.  Fries,    734. 

v.  McCurdy,  443,  474,   486. 

v.  Morgan,   473,    1707,    2065,   2069, 
2082 
Pigot  v.   Mckeever,   846,   948. 
Pike  v.  Johnson,   4039. 

v.  Lent,   1283. 

v.  Nash,  2979,  2983. 

v.  Power,    639,   2873. 

v.  Seiter,    2150. 

v.  Van  Wormer,   855. 
Pilger  v.   Gore,  2115. 

v.  Gou,   269. 
Pilgrim  v.  Donnelly,  3948. 
Pinckney   v.   Childs,    1991. 


Pinckney  v.  Hagerman,  630. 

v.  Hegeman,     3189,     3208,     3209,. 
3211. 
Pindar  v.   Black,   536,  920,   1316. 

v.  Seaman,   1827,   1855. 
Pinder  v.   Soothoff,    2918. 
Pine-Coffin  v.  Erie  R.   Co.,  1574. 
Pinkernelli  v.   Bischoff,    2957. 
Pinkerton   v.   Bailey,    520. 
Pinkney   v.    Childs,    1991. 
Pinsker  v.  Pinsker,   2600,  2616,  2650, 

302-2. 
Piper  v.   Elwood,   3122. 

v.  Hoard,   496,   1016,    3897. 

v.  Van    Buren,    3724. 
Pirrung     v.      Supreme     Council     of 

Catholic  Mut.  Ben.   Ass'n,  4153. 
Pistor  v.   Brundrett,   232. 

v.  Hatfield,    232. 
Pitcher  v.   Clark,   2937. 

v.  Hoople,    297. 
Pitkin  v.  Cooley,   2815 
Pitnev  v.  Glen's  Falls  Ins.  Co.,  391. 
Pitt   v.   Davison,    15,    126,    594,   636. 

v.  Freed,    1299,    1300. 
Pittenger  v.  Southern  Tier  Masonic 

Relief  Ass'n,  945. 
Pittman  v.  Johnson,   2952. 
Pitts  v.  Scribner,   1523. 
Pittsburg    Carbon    Co.    v.    McMillin, 

1648. 
Pittsfield  Nat.   Bank  v.  Bayne,   1655. 

v.  Tailer,    336,   340,    843. 
Pixley  v.  Winchell,   815. 
Pizzi  v.   Reid,    830. 
Place  v.   Bleyl,    943,   1084,    4127. 

v.  Chesebrough,  2139,  2562,  2577. 

v.  Hayward,    303,    2621. 

V.  Miller,    1522. 

v.Minster,    1036. 

v.  New   York   Cent.    &   H.    R.    R. 
Co.,   2284,  2292. 

v.  Rilev,     782,     1538,     1540,     3145,. 
3245. 

v.  Rogers,    4046. 
Place's  Estate,  Matter  of,  3985. 
Plant  v.   Harrison,    1781,   2160. 
Platner   v.    Lehman,    2009. 

v.  Platner,    2224. 
Plato  v.   Reynolds,   2259. 
Piatt,   Matter   of,   1652. 
Piatt    v.    Burckle,    3134. 

v.  Crawford,   133,    832. 

v.  Elias,   4135. 

v.  Finck,    2039. 

v.  Halen,  241. 

v.  Jones,  143. 

v.  Munroe,    2705. 

v.  New  York  &  S.  B.  R.  Co.,  605, 
1638. 

v.  Osborn,    2992.  ' 

v.  Piatt,    2636,    3660. 

v.  Sherrv,    2990. 

v.  Torrey,    2937. 

v.  Townsend,   938,   1910. 

v.  Wilmot,    4075. 

v.  Withington,    3910,    3912. 

v.  Woodruff,    595. 
Piatt   &    Washburn    Refining  Co.   V- 

Hepworth,    1071,    1074. 
Platz  v.   City  of  Cohoes,   3668 
Plenty    v.    Rendle,    2205. 
Plet  v.  Willson,  458,  475. 


TABLE  OF  CASES. 


4293 


[references  are  to  pages.] 


Plimpton   v.    Bigelow,    1412. 
Plummer     v.     Gloversville     Electric 

Co.,    1083,    2766. 
Plunkett  v.  Appleton,  2340,  2729. 
Plympton  v.   Bigelow,    560. 
Pocantico  Water-Works  Co.  v.  Low, 

1570,    1603,    3758. 
Podmore    v.     Seamen's    Sav.     Bank, 
1890,   1892. 

V.  South     Brooklyn     Sav.     Inst., 
1891. 
Poerschke  v.  Baldwin,   1661. 

v.  Horowitz,    4119,    4122. 
Poillon  v.  Cudlipp,    3000. 

v.  Poillon,    576. 

v.  Volkening,   3907. 
Polack  v.   Runkle,   3654. 
Poland   v.  United   Traction  Co.,   363, 

4<X68. 
Polhamus  v.  Moser,  2225,  3759. 
Polhemus     v.     Fitchburgh     R.     Co., 

1679. 
Polhemus  Printing-  Co.  v.  Wynkoop, 

2095. 
Pollatschek  v.   Goodwin,   2225,    2296. 
Polley  v.   Wilkisson,    66,   70,    71,    352. 
Pollman  v.  Livingston,  1055,  1058. 
Pollocek  v.  School,  2013. 
Pollock  v.  Morris,   1864. 

v.  Pennsylvania       Iron       Works 
Co.,   2295,   2301. 

v.  Pollock,    2261. 
Poltz  v.   Curtis,   2126. 
Polykranas  v.    Krausz,   2261,   2344. 
Pomeranz  v.  Marcus,   3659,  4064. 
Pomeroy  v.   Hindmarsh,   1569. 

v.  Hulin,   1992,   1996. 

v.  Moss,   1388. 

v.  Ricketts,    1387,    1440. 
Pommerantz  v.  Bloom,   3256,   3294. 
Pomroy  v.  Columbian  Ins.  Co.,  2733. 
Pond.    Matter    of,     3100,    3101,    3104, 

3115,   3116,    3128. 
Pond  v.  Harwood,   969,  2767. 
Pond's  Estate,  Matter  of,  4078. 

v.  Hudson    River   R.    Co.,   363. 
Pondir  v.   New  York,  L.  E.   &  W.  R. 

Co.,   957,   3416. 
Pool    v.  Ellison,  1041,  1545,  1550,  1553. 

v.  Osborn,   3007. 

v.  Safford,    3376. 
Poole,  Matter  of,  179,  2655,  3800. 
Poole  v.  Belcha,   298. 

v.  Hayes,   1042. 

v.  Kermit,    117,   139. 

v.  Winton,    59. 
Pooler  v.  Maples,   1734. 
Poor  v.  Bowen,  2574. 
Pope  v.   Cole,   3393. 

v.  Dinsmore,   3651. 

v.  Hanmer,    462. 

v.  Kelly,   59,    1088. 

v.  Manhattan   Ry.  Co.,   423,   4070. 

v.  Negus,  732. 

v.  Perault,    2636. 

v.  Terre  Haute  Car  &  Mfg\   Co., 
744,   745. 
Pope  Mfg.  Co.  v.  Rubber  Goods  Mfg. 

Co.,   4112,    4126,   4128. 
Popfinger    v.    Yutte,    960. 
Popham  v.  Baker.  561. 

v.  Barretto,    2836. 

v.  Twenty-third  St.  R.  Co.,  3654. 


Popkin  v.   Friedlander,   560,  2874. 
Porous  Plaster  Co.  v.  Seabury,  1587. 
Porter,   In   re,   1596. 
Porter  v.   Cobb,   55,   2992. 

v.  Goodman,   3091. 

v.  International  Bridge  Co.,  3696, 
3701. 

v.  Jones,   2117. 

v.  Kingsbury,   47,    3778. 

v.  Mount,    395,    2362. 

v.  Parmley,  3133. 

v.  Pierce,  3168,  3173. 

v.  Sewall     Safety     Car     Heating 
Co.,  749. 

v.  Smith,  2389,  2661. 

v.Valentine,    2266-2268. 

v.  Waring,   832,   3854. 

v.  Williams,  3370. 
Pospisil  v.  Kane,  2705.   2711. 
Post,  Matter  of,  250,  253,  633. 
Post  v.  Banks,  1917,  1921. 

v.  Black,  230,  4019. 

v.  Blazewitz,   940. 

V.  Cobb,   624. 

v.  Coleman,  549. 

v.  Doremus,  676,  3729,  3733,  3761. 

v.  Emmett,  1861,  1867. 

v.  Evarts,   287. 

v.  Hathorn,  2722,  2724,  3839. 

V.  Jenkins,  2943. 

v.  Mason,  2737. 

v.  New  York  Cent.  R.  Co.,  1991. 

v.  Scheider,   256. 

v.  Stockwell,  2362. 

v.  Wright,   2026,   2172. 
Post    Exp.    Printing    Co.    v.    Adams, 

867. 
Post's  Estate,  Matter  of,  473,  489. 
Posthoff  v.  Bauendahl,  1545. 

v.  Schreiber,  1546,  2328. 
Potter,  Matter  of,  2639,  2770. 
Potter  v.  Bissell,   2237. 

v.  Carpenter,   2643,    3958. 

v.  Carreras,   1081. 

v.  Chadsey,   2319. 

v.  Chapin,  3947. 

v.Davison,  2171,  2862. 

v.  Durfee,   16,   2934. 

v.  Parrington,    3016. 

v.  Frail,  945. 

v.  Lewis,  2126. 

v.  Low,  3265,  3307. 

v.  McPherson,  142. 

v.  Pattengille,   1696. 

v.  Potter,    1578. 

v.  Smith,  914,  2175,   2864. 

v.  Sullivan,  1321. 

v.  United  States  Nat.  Bank,  869. 

v.  Van  Vranken,   683,  2066,   3775. 

v.  Whittaker,  4012. 
Potter   &  Markham   v.   Carpenter  & 

Co.,    2989. 
Potts  v.  Baldwin,   2066,  2095. 

v.Davidson,  1380,  3286. 
Poucher  v.  Livingston,   2054,  2055. 
Pountney  v.  Pountney,  3011. 
Powell  v.   Clark,  1577. 

v.  Finch,   423. 

v.  Hudson  Valley  R.  Co.,  4161. 

v.  Jones,  2318,   2704. 

v.  Kane,   551. 

v.  New    York    Cent.    &    H.    R.    R. 
Co.,  3953. 


42\U 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


Powell  v.   Rust,  -'.»07,  2908. 
v.  Schenck,  3839,  38  17. 
v.  Waldron,      1634,      3261,      3359, 
3365. 
Power  v.  Alger,  1562. 
v.  Kent,  241. 
v.  Van  Buren,  3105. 
v.  Village  of  Athens,  340,  593. 
Powers,  In  re,  251,  253,  281. 
Powers  v.  Benedict,  43. 
v.  Conroy,  2911. 
v.  Elias,  3114,  3116. 
v.  Elmendorf,   1840. 
v.  Gouraud,  2697. 
v.  Hanford,  4023. 
v.  Hughes,  863. 
v.  Jourdan,  1650. 
v.  Manhattan  R.  Co.,  2089. 
v.  Rome,  Watertown  &  O.  R.  Co., 

953. 
v.  Savin,  2761. 
v.  Sherin,  4113. 
v.  Trenor,  2874. 
v.  Wilson,    3208,    3211. 
v.  Wolcott,  3004,  3013. 
Poyer   v.    New    York   Cent.,    etc.,    R. 

Co.,  2140. 
Praeht  v.  Ritter,  72,  1041. 
Pramagiori  v.  Pramagiori,  1040. 
Pratt     v.     Allen,     2921,     3597,     3710, 
3949. 
v.  Baker,'  3788. 
v.  Bray,  1791,   1800. 
v.  Dwelling     House     Mut.     Fire 

Ins.  Co.,  2282. 
v.  Huggins,  452. 
v.  Mosetter,  3718. 
v.Myers,  1863,  1867,  1869. 
v.  New   York   Cent.    &    H.    R.    R. 

Co.,  2265. 
v.  Ogden,  2322. 
v.  Peckham,  2247. 
v.  Stevens,  541. 
v.  Stiles,  2927. 
v.  Underwood,  1578. 
Pratt,  Hurst  &  Co.  v.  Tailer,  4121. 
Pratt    Mfg.    Co.    v.    Jordan    Iron    & 

Chemical  Co.,  953. 
Pray  v.  C.  A.  Blanchard  Co..  4144. 

v.  Todd,   950,   991. 
Predigested  Food  Co.  v.  Scott,  1750 
Premo  v.  Smith,  1911. 
Prentice,  Matter  of,  3614,  3615. 
Prentice  v.  Bowden,  3671. 
v.  Goodrich,  2273,  3867. 
v.  Huff,  4166. 
Prentiss  v.   Bowden,  696,  3076,   3398, 
3434. 
v.  Livingston,  274. 
v.  Nichols,  630. 
Presbrey  v.  Public  Opinion  Co.,  1786. 
Prescott  v.  Tousey,  2255,  3670. 
Preservaline    Mfg.     Co.     v.     Selling, 

1052,  1058. 
Press  Pub.  Co.   v.  Associated  Press, 
1985. 
v.  Holahan,    1574. 
v.  Star  Co.,  1786,  1804, 
Preston  v.  Fitch.  485. 

v.  Ocean  S.   S.  Co..  2241. 
Preuschl  v.  Wendt,  1612,  1613,  1615. 


Price  v.   Brown,   65,    463,    1000,    1035, 
2277,   2746,  3915. 
v.  Fort    Edward    Water    Works 

Co,  1956. 
v.  Holman,  54. 
v.  Keyes,  2728. 
v.  Levy,  4130. 
v.  Mapes,  2927. 
v.  Mulford,  474. 
v.  Parker,  2561,  4044,  4046. 
V.Price,     61,     1629,     2067,     2068, 
2969,  3964. 
Price    Printing    House    v.    Jewelers' 

Review  Pub.  Co.,   954. 
Prichard  v.   Sigafus,  4172. 
Prickhardt  v.  Robertson,  826,  853. 
Priebe  v.   Kellogg  Bridge   Co.,   2326. 
Priest   v.   Hudson    River   R.    Co..    32, 

482. 
Prime  v.  Anderson,  3067. 
Prince  v.  Brett,  3263. 
v.  Cujas,   47,   2843. 
v.  Currie,  1836. 
Prince  Mfg.  Co.  v.  Prince's  Metallic 

Paint  Co.,  61,  341,  3108. 
Prindle  v.  Caruthers,  842,  908. 
Pringle  v.  Huse,  2190. 
v.  Leverich,  3734. 
v.  Long  Island  R.  Co.,  2082,  3622, 
3930. 
Prior  v.  Prior,  3227. 
Pritchard  v.  Hirt,  2661. 

v.  Nederland  Life  Ins.  Co  ,   1025, 
1669. 
Pritsch  v.   Schlicht,   731. 
Prividi  v.  O'Brien,  4131. 
Proctor  v.   Farnham,   3239. 

v.  Soulier,    590,    637,    3003,    3004, 
3009,  3017,  3024. 
Produce  Bank  v.  Morton,  2726,  3279, 

3398. 
Proestler  v.  Kuhn,  3S67. 
Progressive    Handlanger    Union    v. 

German  Sav.  Bank,   1864,   1865. 
Pronk  v.   Brooklyn   Heights   R.   Co., 

2333. 
Prospect   Ave.,    Matter    of,    274,    275, 

280. 
Prospect  Park  &  C.  I.  R.  Co.,  Matter 

of,  3948. 
Prosser  v.  Carroll,  977,  978. 

v.  Matthiessen,  958. 
Protestant    Episcopal    Pub.    School, 

Matter  of,  16,  3964. 
Prouty  v.  Eaton,  972. 

v.  Glens    Falls.    S.    H.    &    Ft.    E. 

St.  R.  Co.,  1933. 
v.  Lake    Shore    &    M.    S.    R.    Co., 

2075,  2099. 
v.  Michigan  Southern  &  N.  I.  R. 

Co.,  416,  3854. 
v.  Swift,  3199. 
v.  Whipple,  903.   1001. 
Provost  v.   Farrell,   2977,   2985. 
Proweeder  v.  Lewis,  1348. 
Pruden  v.  Tallman,  3316. 
Prusia  v.  Brown,   3208. 
Prussia  v.  Guenther,   723. 
Pruyn  v.  Black,  2362,  4052,  4053. 
v.  Ecuadorian  Ass'n,   4099. 
v.  Lynch,  1999. 
Pryne  v.   Westfall,   3121. 


TABLE  OF  CASES. 


4295 


[references  are  to  pages.] 


Pryor,  Opinion  of,  2303. 
Publishers'    Printing    Co.    v.    Gillen 

Printing-  Co.,  2817. 
Pudney  v.  Griffiths,  3278. 
Pulling  v.   People,   695. 
Pulver  v.  Burke,   387. 

v.  Hiserodt,  2028. 
Pumpelly  v.  Village  of  Owego,  2864. 
Purcell  v.  Hoffman  House,  3814. 
Purchase  v.  Matteson,  2289,  2725. 
Purdy  v.  Austin,   521. 

V.  Baker,   1921. 

v.  Collyer,   488. 

v.  Manhattan  Ry.  Co.,  1054. 

v.  Peters,  27S1. 

v.  Purdy,    532. 

v.Upton,  2885. 

v.  Wardell,   1950. 

v.  Webster,   1750. 
Purple  v.  Horton.  2192. 
Pursell  v.    Fry,   527. 
Pursley  v.  Rodgers,  1890,  1891,  1892. 
Purton  v.  Watson,  206,  3714. 
Purves  v.  Moltz,   82. 
Purvis  v.    Gray,   655,   4036. 
Putnam  v.  Crombie,  2731. 

v.  Griffin,    1527. 

v.  Henderson,    Hull   &   Co  ,    1629. 

v.  Peabody,  2319,  2323. 

v.  Van  Buren,  262. 

v.  Westcott,  3163. 
Putnam    Foundry    &    Mach.    Co.    v. 

Young,   4020. 
Putney  v.  Tyng,  2789. 
Putzel   v.   Schulhof,    3386. 

v.  Shulhoff,   2385. 
Pye,  Matter  of,   158,   165,  3984. 
Pyne  v.  National  S.  S.  Co.,  2985. 
Pyro-Gravure     Co.     v.     Staber,     957, 
2201. 

Q- 

Quackenbush   v.   Johnson,    2625. 

v.  Leonard,    2603,    2G04. 
Quade   v.   New  York.   N.   H.    &  H.   R. 

Co.,  734. 
Quail  v.  Nelson,   1335. 
Quantmeyer   v.   J.   H.    Mohlman   Co., 

2267. 
Queen  v.  Bell,  2613. 

v.  Weaver,   3828,   3929. 
Quereau  v.   Brown,  1015,   2847. 
Quick,  Matter  of,  4082. 
Quick  v.  Leigh,  516. 

v.Merrill,    585. 

v.  Wixon,    4038. 
Quigg  v.  International  Shirt  &  Col- 
lar Co..  3728. 
Quigley     v.     Baumann,     3087,     3203, 
3213. 

v.  Naughton,   3890. 
Quill  v.  New  York  Cent.  &  H.  R.  Co., 

2317. 
Quimby   v.   Claflin,   1043,   2598. 
Quin  v.  Bowe,  2921. 

v.  Lloyd,    2273. 

v.  Riley,   575. 

v.  Tilton,  808. 
Quinby  v.  Claflin  2922. 
Quincey  v.  Young,  2612,  2613. 
Quincy,  M.    &   P.    R.   Co.   v.  Humph- 
reys,  1621. 


Quinlan  v.  Birge,  300. 
v.  Fairchild,   1084. 
V.Welch,   2291. 
Quinlivan  v.  Buffalo,  R.  &  P.  R.  Co., 

3868. 
Quinn   v.    Brooklyn   Heights   R.   Co., 
1936,  4151. 
v.  Case,  2875. 
v.  Lloyd,    270,    273,   2815. 
v.  McDonald,  2559. 
v.  O'Keefe,  2241. 
v.  Royal  Ins.   Co.,   747. 
v.  Winter,    2908,    2910. 
Quintard  v.  Secor,   1703,  1704. 
Quirk    v.     Siegel-Cooper    Co.,     2696, 

2967. 
Quo    Vadis    Amusement    Co.,    In    re, 
592. 


R. 


Raab,  Matter  of,   2957,   2959. 
Raabe  v.  Squier,  2618. 
Raber,   Matter   of,   3666. 
Raby,  Matter  of,  288. 
Race  v.  Gilbert,  3220,  3246. 
Radcliff    v.    Marine    Insurance    Co., 
1924. 

v.  Van  Benthuysen,   663. 

v.  Wood,    1416. 
Radde  v.  Ruckgaber,  949. 

v.  Whitney,    3122. 
Radford  v.  Radford,  1002. 
Radley  v.   Gaylor,   4065. 
Radman  v.  Haberstro,  44. 
Radtke,  Matter  of,  328. 
Radway  v.  Graham,  3668. 

v.Mather,    847. 
Rae  v.  Beach,   3777. 

v.  Harteau,  688,  3777. 

v.  Lawser,    2890. 
Raegener  v.  Hubbard,   3871. 

v.  Medicus,    491. 
Rafel  v    McDermott,  2363. 
Raff  v.  Roster,  3028,  3717,  3718,  3915. 

v.  Koster,   Bial   &   Co.,   880. 
Rafferty,  Matter  of,   3638,  3647. 
Rafferty  v.  Williams,   980. 
Ragsdale  v.   Green,   1575. 
Railway  Adv.  Co.  v.  Posner,  2008. 
Railway  Age  &  N.  W.  Railroader  v. 

Pryibil,    1785,    1802. 
Railway    Passengers'    Assur.    Co.    v. 

Warner,    1768,    2244,    2252. 
Raines  v.  New  York  Press  Co.,  1068. 
Rainsford  v.  Temple,  3307. 
Rainy,  Matter  of,  3365. 
Ralli   v.    Pearsall,    47,   2115. 

v.  White,  958. 
Railings  v.  McDonald,  4082. 

v.  Pitman,   3288. 
Ralph  v.  Husson,  901. 
Rambaut  v.   Irving  Nat.  Bank,  1548, 

::s!is. 
liamchander   v.    Hammond,    498. 
Itamsdfll,   In   re,   2711. 
Ramsev  v.  Childs,  3764. 

v.  Erie    Ry.    Co.,    265,    581,    1597, 
1912,  1923. 

v.  Gould,    581,    1913. 

v.  National       Contracting       Co., 
2825. 
Randall,   In   re,   1774. 


4290 


TABLE  OF  CASES. 


[REFERENCES   ARE   TO   PAGES.] 


Randall     v.     Carpenter,     1600,     1608, 

1610,  1613,   1614. 
v.  Cook,    3113. 
v.  Crandall,   1314. 
v.  Dusenbury,   3060,  3062. 
v.  Holbrook,  Cabot  &  Daly  Cont. 

Co.,   4051. 
v.  Morning-   Journal   Ass'n,    29S4. 
v.  New  York  El.  R.  Co.,  2677. 
v.  Packard,    2349. 
v.  Raab,   4  65. 
v.  Randall,  787. 
v.  Sackett,  2095. 
v.  Sherman,    2565. 
v.  United     Life     &     Ace.     Ass'n, 

9  ft  9  fi     9  S7 1 

v.  VanVagen'en,  293,  300,  907. 
Randell  v.   Abrisqueta,    1915. 

v.  Von   Ellert,    3244. 
Randerson    v.    White    Star    Towing 

Co.,   1956. 
Randolph  v.  Foster,  2967',  2995. 

v.  Susquehanna  Water  Power  & 
Paper  Co.,   1448. 
Raney  v.  Weed,  1734. 
Rank  v.   Grote,    1067,    3019. 
Ranken  v.  Donovan,  229S. 
Rankert  v.   Rankert,   4052. 
Rankin  v.    Bush,   4127. 
v.  Nelson,   2197. 
v.  Pine,    3689. 
Ranney  v.  McMullen,  381. 
v.  Peyser,   1651. 
v.  Russell,     1992. 
Rannow  v.   Hazard,   3844. 
Ranous  v.   Trageser,    2704. 
Ransdell  v.   National  Rivet   &  Nov- 

eltv  Co.,   2033,   2871. 
Ransom  v.   Halcott,   1472,   1473. 

v.  Miner,  3108. 
Rapalee  v.  Stewart,   3630,   3717. 
Rapelye  v.  Prince,  1977,  2690. 
Raphael   v.  Mencke,    467. 
Rapid  Safety  Filter  Co.  v.  Wyckoff, 

2913,   2914. 
Rapid  Transit  Com'rs,  In  re,  4174. 
Rappaport  v.  Werner,   397,  1708. 
Rapplee,  Matter  of,  3991. 
Rappleve,   Matter   of,   1832 
Rasch,  Matter  of,  1883,   1908. 
Rasquin     v.     Knickerbocker     Stage 

Co.,  297. 
Rathbone  v.  Blackford,  1369. 
v.  Harman,   1937. 
v.  McConnell,   2909. 
v.  Morris,    3781. 
v.  Warren,   1366,   1372. 
Rathbun  v.   Acker,   647,   655. 
v.  Brownell,    4068. 
v.  Ingersoll,  1735,  1736,  2593. 
v.  Markham,  1065. 
v.  Ross,  2255. 
Rattle  v.  Mutual  Life  Ins.  Co.,  1677, 

1689. 
Ratzer  v.   Ratzer,   1056. 
Rauderson    v.    White    Star    Towing 

Co     1955. 
Rauth  v.  New  York  El.  R.  Co.,  2812. 

v.  Scheer,   2284. 
Raux  v.   Brand,    497. 
Raven  v.  Smith,   49,  185. 
Rawlinson  v.  Brainerd  &  Armstrong 
Co.,  3006. 


Rawolle  v.  Kalbflcisch,  4178. 
Rawson  v.   Leggett,   3858. 

v.  Silo,    3857,   3860,    4154. 
Ray  v.  Adams,  3237,   3241. 
v.  Birdseye,    3102,    3121. 
v.  Connor,   640. 
v.  Harcourt,    3116. 
v.  New  York  Bay   Extension    R. 

Co.,  15,   3615. 
v.  Ray,  440,   452. 
Raymond,    Ex   parte,    3164,    3173. 
Raymond   v.   Hogan,   982. 
v.  Howland,    2335. 
v.  Husson,  2025. 
v.  Richardson,   2229. 
v.  Richmond,   3723,   3731. 
Rayner's  Will,  Matter  of,  3976,  3991. 
Raynor  v.   Brennan,   70. 
v.  Gordon,   454. 

v.  Raynor,  2726,  2727,  2753,  3613. 
Read  v.   Brayton,   88. 

v.  French,    261,    789,   2885. 
v.  Hurd,    2319. 
v.  Joslyn,  289. 
v.  Lambert,   906. 
v.  Lozin,  3668. 
v.  Lanahan,   1407,    1408. 
v.  Markle,   500. 

v.  Mutual   Safety   Ins.    Co.,    2010. 
v.  Nichols,   2345. 
Reade  v.  Continental  Trust  Co.,  2295. 
v.  Waterhouse,    1888,   1894,    2950. 
Reading  v.  Haggin,  129. 

v.  Lamphier,    S3. 
Reading  Braid  Co.  v.  Stewart,   2664. 
Ready  v.   Stewart,    53,   1382. 
Real  v.  People,  232. 
Real  Estate  Corp.  v.  Harper,  2  903. 
Reaney  v.   Standard  Oil  Co.,  2337. 
Reavy  v.  Clark,   452. 
Rebhun  v.  Swartwout,   2745. 
Receiver    of    City    Bank    of   Buffalo, 

Matter  of,  3413. 
Reck  v.  Phenix  Ins.  Co.,  2297. 

v.  Phoenix  Ins.   Co.,   706,   1037. 
Record   v.   Messenger,    2112. 
Rector    v.    Ridgwood    Ice    Co ,    1949, 

1950. 
Rector    of    Church    of    Redeemer    v. 

Crawford,  29. 
Rector,  etc.,  of  St.  James  Church  v. 

Huntington,   829. 
Reddington     v.     Mariposa     Land     & 

Min.   Co.,   748,    801. 
Reddish,  Matter  of,   193,  229,  3603. 
Redfield   v.   Frear,   1295. 

v.  Holland     Purchase     Ins.     Co., 

2391. 
v.  Middleton,  1572. 
Redmond  v.  Dane,  569. 

v.  Goldsmith,   3290,  3313. 
v.  Tone,   2206. 
Redner  v.   Jewett,   3213. 
Reed  v.  Batten,  2924. 

v.  Chilson,   51,   811,    813,    814. 

v.  City  of  New  York,  1032,  3897. 

v.  Livermore,  4049,  4113. 

v.  Loucks,    2820. 

v.  McConnell,   3864. 

v.  McCord,  3622,  3707,  3876,  3877. 

v.  Pruyn,   3188. 

v.  Reed,    1748,    2051. 

v.  Spear,   4160. 


TABLE  OF  CASES. 


4297 


[REFERENCES    ARE   TO   PAGES.] 


Reed  v.  State,  487. 

v.  Stryker,    61,    3413. 

v.  Wheaton,    3408. 
Reeder  v.  Lockwood,  885,  1915,  1923, 

2852. 
Reedy     Elevator    Co.     v.     American 

Grocery  Co.,  1519. 
Rees  v.  Van  Patten,  2109. 
Reese  v.   Baum,    4122. 

v.  Boese,  2677,  3726,  3842. 

v.  Bushby,   1014. 

v.  Smyth,    3714. 

V.  Walworth,    1070. 
Reeves,  Matter  of,  3030. 
Reformed     Church     v.     Schoolcraft, 

458,    462. 
Reformed  Protestant  Dutch  Church 

v.    Brown,    3953. 
Regan,  Matter  of,  3614. 
Regan  v.  Priest,   2170. 

v.  Traube,    771. 
Rehberg  v.  City  of  New  York,  2248. 
Reich  v.  City  of  New  Tork,   2305. 

v.  Cochran,    4062,    4172. 

v.  Dyer,    3883. 

v.  McCrea,  2728. 
Reichel  v.  New  York  Cent.  &  H.   R. 

R.  Co.,  2985,   3047,  3949. 
Reichenbach  v.  Spethmann,   1436. 
Reichenberg    v.    Interurban    St.    R. 

Co.,   3652,  3663. 
Reichmann   v.   Manhattan   Co  ,   1776. 
Reid   v.   Board   of  Sup'rs   of   Albany 
County,    500. 

v.  City  of  New  York,  2663,  3799, 
3803 

v.  Defendorf,    3998. 

v.  Evergreens,   417. 

v.  Gaedeke,  2972. 

v.  Stegman,    3093. 

v.  Yenderheyden,  3653. 
Reidv  v.  Bleistift,   2871. 
Reiffeld  v.  Delaware  &  H.  Canal  Co., 

2706. 
Reillv  v.  D.  &  H.  Canal  Co  ,  3892. 

v.  Eastman's  Co.,   2302,  3893. 

v.  Freeman,  2758. 

v.  Hart,   779,   2081. 

v.  Lee,  972,  2922. 

v.  Sabater,  925. 

v.  Sicilian    Asphalt    Paving    Co., 
53,  56,   4048. 

v.  Sisson,    1441. 

v.  Third  Ave.    R.   Co.    2329,    2330. 

v.  Vought,    2278. 
Reilly's    Sons    Co.,    James    v.    Aaron, 

2009. 
Reimer  v.  Diedrick,  2009. 

v.  Doerge,    1052. 

v.  Nagel,    1283. 
Reiners   v.    Brandhorst,   828. 
Reinhart  v.  People,  2237. 
Reinitz,  Matter  of,  1302. 
Reinmiller   v.    Skidmore,    3113,    3193, 

3798. 
Reiss  v.  Kienle,    4164. 

v.  Town  of  Pelham,  3612. 
Reitmayer  v.  Crombie,   4095. 
Remin    v.    Nagle,    1283. 
Remington    v.   Walker,    957. 

v.  Westermann,    1905. 
Remington    Paper    Co.     v.     O'Brien, 
3036. 


Remington     v.     O'Dougherty,     1391, 

2881,  3016,   3148,   3156. 
Remington  &  Sherman  Co.  v.  Niag- 
ara County  Nat.   Bank,    363. 
Remmey  v.  Gedney,  1423,   3265. 
Rerasen,  Matter  of,  3205. 
Remsen  v.  Conklin,  81. 
v.  Isaacs,  571. 

v.  Metropolitan  El.   R.  Co.,  2240. 
Renard   v.   Graydon,    954. 

v.  Reese,  3238. 
Renaud    v.    O'Brien,    3398. 

v.  Pack,   2318. 
Renner  v.  Meyer,   650,   3325. 
Reno   v.   Millspaugh,    4031. 
Renouil    v.   Harris,    2577,    2582,    2789, 

3685,    3686. 
Rensselaer     &     Saratoga     Ry.     Co., 

Matter  of,  16. 
Rensselaer    &    S.    R.    Co.    v.    Davis, 

3020. 
Renwick  v.  Morris,  40. 

v.  New  Cent.  Coal  Co.,  1909. 
v.  New    York    El.    R.    Co.,     2678, 
2680. 
Republic  of  Honduras  v.  Soto,  1883, 

1885,    1906. 
Republic    of    Mexico    v.    Arrangois, 
143,   1885. 
v.  De    Arangoiz,    672,    1285. 
Republic  of  Peru  v.  Reeves,  2082. 
Requa  v.  City  of  Rochester,  2345. 
v.  Holmes,    2074,   2345. 
v.  Rea,   3228,   3233,   3245. 
Requard  v.   Theiss,   612. 
Restorff   v.    Ehrich,    940. 
Rettig    v.    Fifth    Ave.    Transp.    Co., 

2322. 
Reubens  v.  Joel,  1567,  1569. 
Revelski  v.  Droesch,  2666. 
Revere     Copper     Co.     v.     Dimmock, 

3961. 
Rewev  v.   Riley,   2333. 
Rexter    v.    Starin,    2323,    2377,    2816, 

3297,    3365,    3369. 
Reynolds    v.     Aetna    Life    Ins.    Co., 
1055,    1057,    1058,    2377,    2816, 
3297,   3365,    3369,   3966. 
v.  Champlain   Transp.    Co.,    2699, 

2730,   2734. 
v.  Craus,   1077. 
v.  Darling,    3158. 
v.  Davis,   114,   3917. 
v.  Ellis,  3432. 
v.  Everett,  1603. 
v.  Fountain,   2848. 
v.  Freeman,  571. 
v.  Horton,   1398. 
v.  Kaplan,  280. 
v.  Lawton,    3S1. 
v.  McElhone,    3344. 
v.  Miller,    2299. 
v.Moore,    2631,    2992. 
v.  New    York    Cent.    &   H.    R.    R. 

Co,    2693. 
v.  Parkes,  331,   582. 
v.  Port  Jervis  Boot  &  Shoe  Fac- 
tory, 2235. 
v.  Reynolds,    1765,    2581,   2699. 
v.  Swick.    4029. 
v.  Warner,  2981. 
Reynolds  Co.,  J.  J.  &  A.  L.,  v.  Drey- 
er,  1590. 


4298 


TABLE  OF  CASES. 


[REFERENCES    ARE   TO   PAGES.] 


Rheinfeldt    v.    Dahlman,    1548,    2249, 

23  15,   2366.  ^nrn 

Rheinstrom  v.  Weir,  195<.        ..  . 

Rhinebeck   &   C.    R.    Co.,   Matter   of, 

Rhfnelander    v.     Farmers'     Loan    & 
Trust  Co.,  469. 
v.  National  City  Bank    44 
Rhoades     v.     Schwartz,    182i>,     1844. 

v.  Woolsey,   1596. 
Rhoads  v.  Metropolitan  St.  Ky.   Co., 
16S9. 
v.  Woods,    147  5. 
Rhodes  v.   Bunts,  3595. 
v   Carr,    4035,    4038. 
v.  Lewin,   1037,    1038. 
v.  Linderman.    3307. 
v  Wheeler,  1572,  1590,  1937. 
Rice  v.   Barrett,   3235. 

v.  Childs,    2919,    3636. 

v.Davis,    3161,    3162,    3170,    3173, 

3177. 
v.  Ehele,    107. 
v.  Ehle,    597. 
V.  Grange,   985. 
v.  Isham,  26S0,   3828. 
v.  Mead,    106. 
v.  Motley,    1815. 
v.  O'Connor,   985,   1003. 
V.  Penfield,    479. 
v.  Rice,    2256. 
v.  Rockefeller,    865. 
v.  Whitlock,  682,   3786 
Rice's  Will,   Matter   of,   3990. 
Ricetti  v.  Mapleson,   1453. 
Rich  v.   Conley,    4004. 

v.  Manhattan  R.  Co.,  3  i 14. 

v  New   York   Cent.    &   H.    R.    ti- 

Co.,  28. 
v.  Roberts,   1991. 
Richard    Thompson     Co.    v.     Brook, 

Richards    v.   Allen,    3105,    3132,    3359. 
v.  Edick,    995. 
v.  Fox,  1033. 
v.  Goldberg-,  1580,  1584. 
v.  Kinsley,    61. 
v.  Littell,   207,    1004. 
v.  Ludington,    2073. 
v.  Pitts       Agricultural      Works, 

2319 
v.  Porter,   1355,    3183. 
v.  Price,   3724. 
v.  Salter,   2931. 
v.  Sandford,    2697. 

v.  Stillman,    2955. 

v.  Stokes,    2565. 

v.  Varnum,    3147. 
Richardson  v.  Backus,  2862 

v  Brooklyn    City    &    N.    R.    Co., 
241,   308,  915. 

v.  Draper,  398. 

v.  Gere,    1728. 

v.  Hartmann,   2740. 

v.  Levi,  3927. 

v.  McCreery,  1790. 

v.  McDougall,  3086,  3122. 

v.  Richardson,   1880. 

v.  Rust,   3422. 

V.  Searles,  3242. 

V  Sun  Printing  &  Pub.  Ass  n, 

2874,  2876,  2937. 

V  Thedford,  2112,  2120,  3026. 


1446, 


Richardson  v.  Trimble,  3396. 
v.  Van  Voorhis,   -343,   2698. 
v  Western  Home  Ins.  Co.,  747. 
v.  Wilton,   950. 
Richardson's  Estate,  In  re,  2625. 
Richardson   &  Morgan  Co.  v.   Gude- 

will,  1058. 
Hi,  he  v.  Martin,   2308. 
Richie  v.  Bedell,  3329,  3338,  3640. 
Richmond,   Matter   of,   3654,   3977. 
Richmond  v.  Cowles,  562. 
v.  Praim,    3211. 
v.  Roberts,   2881. 
Richter    v.     Equitable    Life    Assur. 
Soc,    866. 
v.  Wise,  1525. 
Richtmeyer  v.  Remsen,  378. 
Richtmyer  v.  Richtmyer,    1007. 
Rickards  v.  Swetzer,  562. 
Ricker   v.   Erlanger,    869. 
Rlcker  &  Sons  v.  Leigh,  1565. 
Rickerson     v.     Bunker,     1443, 

I451- 
Rickert  v.  Pollock,  4058. 
Rickey  v.   Christie,   4019. 
Ridabbck  v.  Metropolitan  El.  R.  Co., 

Bidder  v.  Whitlock,  29,   794. 
Riddles   v.   Mitchell,    1364. 
Rider,  Matter  of,  196,  3229. 
Rider  v.   Bates,   1047,   2936. 

v.  Foggan,    2766. 

v.  Hubbell,    2993. 

v.  Mason,    3398,    3402. 
Rider  Life  Raft  Co.  v.  Roach.  397. 
Ridgway  v.  Bacon,   60,   380,   408. 

v.  Symons,    1893,    1896. 
Rieben  v.   Francis,  1346. 
Riegelman  v.  Brunmngs,  274d. 
Rieger  v.   Swan,  2325. 
Riegler  v.  Tribune  Ass  n,  2231. 
Rielly  v.  Rosenberg,  1888,  1889. 
Rielly's  Case,  145. 
Riendeau  v.  Vieu,   850. 
Rigas  v.   Livingston,  1588. 
Uiggins  v.  Williams,  1904. 
Riggs  v.  American  Tract  Soc,  829. 
v.  Commercial     Mut.      Ins.     Co., 

v  Pursell,    642,    3235,    3237,    3241. 
v.  Shannon,   2138,   2160. 
v.  Stewart,    1015. 
v  Waydell,   1992,   1994,   1995. 
v.Whitney,   329,   1641. 
Righter  v.   Stall,   2928,   2930. 
Riglander  v.   Star  Co.,   4138. 
Rigney   v.    Tallmadge,    3086. 
Riker  v.  Curtis,  506,  515,  3907. 

v.  Erlanger,  4097. 
Riketts  v.  Green,   847. 
R  lev  v.  Gitternmn,   2063,   2086,  3676. 
v  New  York,  L.  E.  &  W.  R.  Co., 

2230. 
v.  Riley,    516. 
v.  Rvan,    4148,    4172. 
v.  Sc'hoeffel,   3190. 
Rima  v.  Rossie  Iron  Works,  91,  93. 
Rinchey  v.  Stryker,  14  06.  1414,  1494. 
Rinelander  v.  Dunham,   3340. 
Ring  v.  Gibbs,   1508. 
v.  McCoun,    349. 
v  Mitchell,    4091,    4126,   4128. 
v.  Mott,  1738. 


TABLE  OF  CASES. 


429£ 


[REFERENCES  are  to  pages.] 


Ring-  v.  Wheeler,  247. 

Ringle  v.   Wallis  Iron  Works,   2115, 

2740. 
Riordan       v.       First       Presbyterian 

Church,    380. 
Rio  Tinto  Copper  Min.  Co.  v.  Black, 

4123. 
Ripley  v.   Burgess,   573,   666. 

v.  McCann,  723. 

v.  Second  Ave.  R.  Co.,  2331. 
Ripple  v.  Gilborn,   957. 
Risley  v.  Carll,   841,  990,  1064. 

v.  Smith,    379. 

v.  Van   Delinder,    4024,    4029. 
Ritchie   v.    Putnam,    2374,    2736. 

v.  Seaboard  Nat.  Bank,  1688. 
Ritten  v.  Griffith,  772. 
Rittenhouse  v.  Creveling-,  946. 
Ritter   v.    Greason,    3341,    3345. 
Ritter  Lumber  Co.  v.  Bacon,  1902. 
Ritterband  v.   Baggett,   3261. 

v.  Maryatt,    3278. 
Ritterman  v.  Ropes,   12S0. 
Rivenburgh  v.  Henness,  230. 
Riverside  Bank  v.  Jones,  3022. 

v.  Totten,    2076. 
Roach  v.  Duckworth,  2816. 

v.  Odell,    358,    1962. 
Roache  v.  Kivlin,  890. 
Robarge  v.  Central  Vermont  R.  Co., 

849. 
Robbins  v.  Downey,  2665. 

v.  Falconer,  1285. 

v.  Ferris,    645,    3604. 

v.  Mount,    2381. 

v.  Palmer,    1070. 

v.  Richardson,    913. 

v.  Watson,  2135. 

v.  Wells,   997,    1058,    1059. 
Robbins'  Estate,  Matter  of,   520. 
Robens   v.   Sweet,   3267,   3300,   3643. 
Roberge  v.  Winne,  2314. 
Roberson  v.  Murray,  2566. 

v.  Rochester    Folding    Box    Co., 
3954     3955. 
Robert  v.  Corning,'  3908. 
Robert    Gere    Bank   v.    Inman,    1071, 

1077. 
Roberti  v.  Carlton,   1873,  1878. 

v.  Methodist        Book       Concern, 
1886. 
Roberts,  Matter  of,  2072. 
Roberts   v.   Albany   &  W.   S.    R.   Co., 
3419. 

v.  Berdell,  500. 

v.  Bower,   105. 

v.Carter,    1341,    1727. 

v.  Cone,    2139,    2191. 

v.  Cullen,  869. 

v.  Doty,   294,   2112. 

v.  Ely,    474. 

v.  Failis,   2353. 

V.  Jenkins,   1677. 

v.  Johnson,   3867. 

v.  Lansing-,   1935,   1962. 

v.  Leslie,   837,   844. 

v.  Marsen,  2071,  2092. 

v.  Morrison,   2753. 

v.  New  York  El.  R.  Co.,  401,  405, 
2932,  3000,  3021. 

V.  Ogdensburgh   &   L.    C.   R.   Co., 
1817,  2217. 

v.  Press   Pub.   Co.,    1781. 


Roberts  v.  Prosser,  1288. 

v.  Randel,   1283. 

v.  Safety  Buggy  Co.,   864,   867. 

v.  Sykes,  494. 

v.  Tobias,    2342,    2344,    2388. 

v.  Union  Elevated  R.  Co.,   302. 

v.  Vanhorne,   1S66,    1867. 

v.White,    1605,    1607,    1608,    1611, 
1614,    1615,    2607,    2644,    2758, 
2771,  2772. 
Robertson   v.   Barnum,    1897,    1905. 

v.  Bullions,    3855. 

V.  Hay,   2678,   3317,   3319. 

v.  Lawton,    1485,    3101,    3104. 

v.  Merz    Universal    Extractor    & 
Const.  Co.,  1670. 

v.  National    Steamship    Co.,    390. 

v.  Robertson,    239,   787,   1034. 

v.  Rockland   Cemetery  Imp.   Co  , 
1046,   1077. 

v.  Russell,  1797. 

v.  Schellhaas,   1683. 
Robertson's  Will,  Matter  of,  117. 
Robeson  v.   Central  R.  Co.,  454,  956, 

1029. 
Robins  v.  Gould,  2122. 
Robinson,  Matter  of,  398,  2095,   3621. 
Robinson  v.  American  Chemical  Co., 
2873. 

v.  Brennan,   262,   3131. 

v.  Brown,   59. 

v.  Chinese  Charitable  &  Benevo- 
lent Ass'n,  2211. 

v.  Columbia   Spinning   Co.,    1465, 
1467.  1481. 

v.  Comer,  868. 

v.  Ecuador      Development      Co., 
892,    896,   898. 

v.  Flint,  66. 

v.  Govers,  2067,  2100,  2101,  3694. 

v.  Hall,  27  7  4. 

v.  Hawley,   2882,   3119. 

v.  Hopkins,  2649. 

v.  Judd,  1016,  1710. 

v.  Lampel,   3869,   4118. 

v.  Meigs,   3231,   3240,   3241. 

v.  Metropolitan   St.   R.   Co.,    4164. 

v.  National   Bank    o'f   Newberne, 
140. 

v.  New  York   El.    R.   Co.,    237.4. 

v.  New  York,  L.  E.  &  W.  R.  Co., 
2149. 

v.  Oceanic   Steam   Nav.   Co  ,   134, 

v.  Plimpton,    3772. 

v.  Robinson,   2594. 

v.  Rowland,    4022. 

v.  Sinclair,   561. 

v.  Smith,    2381. 

v.  Stewart,  4096. 

v.  Weeks,  378. 

v.  Wiley,  1426. 
Robinson's   Case,    1417,    1419,    1420. 
Robitzek  v.  Hect,  3029. 
Roblin  v    Long,  950. 
Robson  v.  New  York  Cent.  &  H.   R. 

R.  Co.,  2343. 
Roche  v.  Marvin,  354,  574. 

v.  O'Conner,    4090. 
Rochester,  Matter  of,  2815. 
Rochester  Bar  Ass'n  v.  Dorthy,  251. 
Rochester    Distilling   Co.    v.    Deven- 
dorf,  45. 

v.  O'Brien,    290. 


4300 


TABLE  OP  CASES. 


[REFERENCES  are  to  pages.] 


Rochester,   H.    &  L.   R-   Co    v .New 

York,  L.  E.  &  W.  R.  Co.,  1586. 
Rochester    Lamp    Co.    v.     Brigham, 
334,   335.  „4„        .    _ 

Rochester  Lantern  Co.  V.  Stiles  &  f. 

1'ivss  Co..   lic.r.r,.   ::si;;i. 
Rochester  Ry.  Co.  v.  Robinson    S25. 
Rochester  &  G.  V.  R.  Co.   v.   Clarke 

Nat.   Bank,   115. 
Rochester  &  H.  V.  R.  Co.  v.  Roches- 
ter,  3015. 
Uo.-h.-stcr  &   K.   F  Land  Co.   \.   Ray- 
mond,  2294. 
v.  Roe,  957.  „, 

Rochfort  v.  Metropolitan  St.  Ry.  Co., 

307. 
Rock  v.  White,  2276. 
Rock  River  Bank  v.  Hoffman,  144. 
Rocke  v.  Meiner,  2244. 
Rockefeller   v.   St.   Regis   Paper  Co., 
3661. 
v.  Weiderwax,   2963. 
Rockford,    R.    I.    &   St.   L.    R.    Co.    v. 

Boody,    1269. 
Rockwell,  Matter  of,   3603,   3604. 
Rockwell  v.  Brown,  2256. 

v.  Carpenter,   2384,   2810. 
v.Day,   4126. 
v.  Decker,   3236. 

v.  Hartford    Fire   Ins.    Co.,    2141. 
v.  Merwin,   924,   1648,   3373. 
Rodbourn   v.   Utica.   I.    &    B.    R.   Co., 

Rodd  v.   Sleicher,   1933. 
Rodding  v.   Kane,   225,   227. 
Rodgers  v.  Bonner,  1463,  1465,  1482, 
1483,  1536.  nnH_ 

v.  Clement,      1044,      3879,      3915, 

3916. 
v.  Fletcher,   2266,    2267. 
v.  Rodgers,   928. 
Rodie  v.  Verdon,   1929. 
Rodkinson  v.   Gantz,  1023. 
Rodman  v.  Devlin,   473. 

v.  Henry,  3333. 
Roe  v.  Angevine,   2051. 
v.  Beakes,    478. 
v.  Hanson,    4019. 
v.Hume,    3430. 
Roebee  v.  Bowe,   248,   674 
Roeber   v.   Dawson,    2851,    3199. 

v  New    Yorker    Staats    Zeitung, 
3705,    3836. 
Roeder  v.  Ormsby,   1001. 
Roediger  v.   Gleason,    1643. 
Roehner  v.  Knickerbocker  Life  Ins. 

Co     695 
Roehr  v.   Liebmann,   411,   1710,   3908. 
Rogan  v.  Mullins,   2363. 
Rogers,  Matter  of,  575. 
Rogers   v.   Adriance,   2087. 
v.  Baere,   594. 
v.  Beard,   2643. 
V.  Decker,    889. 
v.  Durant,     579. 
v.  Garrison,    2026. 
v.  Gosnell,    380. 
v.  Hitchcock,   1884. 
v.  Hosack,   3845. 
v.  Ingersoll,      3718,      4131,      4132 

4133. 
v.  Ivers,   2818. 
v.  James,  3235. 


Rogers  v.  King,  971. 
v.  Laytin,    3833. 
v.  McElhone,  189,  584,  1342. 
v.  McLean,  2038,  2040,  2045,  3241. 
v.  Marcus,   4156. 

v.Morton,  4091,   4109,  4111,   4116. 
v.  Murdock,    445. 
v.  Murray,  2698. 
v.  New    York    &    T.    Land    Co., 

2763. 
v.  Niagara  Ins.  Co.,  2699. 
v.  Rockwood,    659,    668. 
v.  Rogers,    1738,    2195,    3033. 
v.  Schmersahl,    666,    789,    3776. 
v.  Straub,    2145. 
v.  T.    H.    Simonson    &    Son    Co., 

4106. 
v.  Toole,   613. 
v.  Vosburgh,   1078. 
v.  Wendell,   1644. 
V.Wheeler,       4048,      4049,      4050, 
4051. 
Rogers'   Estate,   Matter  of,   473,   511. 
Rogers  Locomotive  &  Mach.  Works 

v.  Kelley,    1413. 
Rohshand   v.    Waring,    3308. 
Roldan  v.  Power,  985. 
Rolker  v.   Gonzalez,    1320. 
Rollins  v.   Barnes,   1999. 

v.  Sidney  B.  Bowman  Cycle  Co., 

2718,    3886,    3898. 
v.Wood,   3692. 
Romaine  v.  Bowdoin,   1662. 
v.  Brewster,    2754,    2774. 
v.  Chauncey,    3365. 
v.  New   York.   N.  H.   &  H.   R.   R. 
Co.,    4046. 
Romano  v.   Irsch,   987. 
Romanoski    v.    Union    Ry.    Co.,    iZb, 

427. 
Rome,  W.   &  O.  T.  R.  Co.  v.  City  of 

Rochester,    542,    1599. 
Romeo  v.  Garafolo,  1516,  1518. 
Romer  v.  Kensico  Cemetery,  4099. 
Romertze  v.    East   River  Nat.   Bank 

2257. 
Romeyn  v.   Sickles,   1037. 
Rommency    v.    City    of    New    York, 

2331. 
Roney  v.   Aldrich,   3869. 
Roof  v.  Meyer,  206,  2822. 
Rook  v.   Dickinson,    2041,    3345. 
Roome  v.  Jennings,   1393. 

v.  Nicholson,  1076. 
Roonev  v.  Bodkin,   4107. 

v.  Second  Ave.  R.  Co.,  298. 
Roosa  v.  Saugerties  &  W.  Turnpike 
Road  Co.,  2631.  nnno 

Roosevelt  v.  Bull's  Head  Bank,  2008, 
2010. 
v.  Dale,  537,  561. 
v.  Dean,   589. 
v.  Draper,  417. 
v.  Edson,   1574,   1576,   1595. 
v.  Ellithorp,    2951. 
v.  Gardinier,   871,   1924. 
v.  Mark,   519. 
v.  New  York  &  H.   R.  Co.,    1703, 

1706. 
v.  Schermerhorn,   2969. 
Root  v.  King,   2674,   2681. 

v.  Sherwood,    2357,    2358. 
Roozen  v.  Clonin,  717. 


TABLE  OF  CASES. 


4301 


[REFERENCES    ARE   TO   PAGES.] 


Ropes   v.   Arnold,    2685,    37S8. 

Rosa    v.    Second    Ave.    R.    Co.,    1878, 

1881. 
Rose  v.   Durant,    3277. 

v.  Henry,    3072,    3273. 

v.  Meyer,   854. 

v.  Renton,    1402. 

v.  Smith,    4010. 

v.  Wells,   4038,   4039. 
Roseberry  v.  Nixon,   2302. 
Roseblatt  v.  Joseph  M.  Cohen  House 

Wrecking  Co  ,    4161. 
Rosekrans  v.  Hughson,   3170. 
Rosen  v.  Goldstein,  2107. 
Rosenbaum    v.    Fire    Ins.    Ass'n    of 
England,   875. 

v.  Greenbaum,   2008. 

v.  Rice,     1784,     1788,     1797,     1798, 
1801,    1803,    1808,    1811. 

v.  Tobler,   3752. 
Rosenberg  v.  Block,   1325. 

v.  Courtney,    429. 

v.  Heidelberg,    4128. 

v.  Salomon,  429,   432. 

v.  Staten     Island     Ry.     Co.,     60, 
1694,  1696. 

v.  Third   Ave.    R.   Co.,    2025. 
Rosenblatt    v.    Jersey    Novelty    Co., 

4054,    4080,    4135. 
Rosenbloom  v.   Cohen,   3890. 
Rosenblum  v.  Gorman,   1549,   1550. 
Rosenfield  v.  Shebel,  1058. 
Rosenquest   v.    Canarv,    2717. 
Rosenstein  v.  Fox,   2368,   2664. 

v.  Traders*    Ins.    Co.,    4162. 

v.  Vogemann,    4162. 
Rosenstock    v.    City    of    New    York, 
3110,   3111. 

v.  Dessar,  862. 
Rosenthal  v.  City  of  New  York,  315. 

v.  Plumb,   504. 
Rosenzweig  v.  McCaffrey,   396. 

v.  Wood,    1395. 
Rosin  v.  Lidgerwood  Mfg.  Co.,   4051. 
Roslyn  Heights  Land  &  Imp.  Co.  v. 
Burrows,     2149,     2576,     2582,     3b33, 
3718. 
Ross  v.  Beecher,  2575. 

v.  Bridge,    1990,    1992. 

v.  Butler,    334. 

v.  Caywood,  2388. 

v.  Clussman,    3258,    3307,    3422. 

v.  Dinsmore,    1022. 

v.  Dole,  2910. 

v.  Duffv,   1012. 

v.  Ferris,    683,    3775. 

v.  Gleason,   3931. 

v.  Hamlin,    1064. 

v.  Ingersoll,      1386,      1493,      2679, 
2682,  3628. 

v.  Longmuir,    895,    985,    900. 

v.  Markham,    4006. 

v.  Mather,   2765. 

v.  Metropolitan   St.   R.   Co.,   3865, 
4169. 

v.  Ross,   521,    628,   1073,   3989. 

v.  Wiser.   552,   555,  558,   575,   2075, 
3657,  3658. 
Rosseau  v.  Rouss,   4118. 
Rosselle   v.   Klein,    906,    3434,   3435. 
Rossie    Iron    Works    v.    Westbrook, 

362. 
Rosskam  v.  Curtis,   3843. 


Rossner     v.      New     York     Museum 

Ass'n,   655,  1855. 
Rosso  v.  Second  Ave.  R.  Co.,  2051. 
Rossow  v.  Bank  of  Commerce,  1583. 
Rost    v.    Brooklyn    Heights    R.    Co., 
2217,  2689. 

v.  Harris,  834. 
Roth  v.  Meads,  2979. 

v.  Palmer,   28. 

v.  Schloss,    187,    3067. 

v.Wells,    2329,    3115,    3116,    3117, 
3119. 
Rothchild   v.   Grand   Trunk   Ry.   Co., 
30,   837,  1000. 

v.  Rio   Grande   W.    R.    Co.,    2674, 
2675. 
Rothenberg   v.    Filarsky,    2111,    2113. 
Rothery   v.    New    York    Rubber    Co., 

2987,  2988,  3010. 
Rothlein  v.  Hewitt,  352. 
Rothnell   v.    Paine,    1331. 
Rothschild   v.   Goldenberg,    4175. 

v.  Gould,    3344. 

v.  Mack,  28,   969. 

v.  Mooney,    1464. 

v.  Rio  Grande  Western  Ry.  Co.,. 
826,    828,    850,    3789. 

v.  Whitman,    978,    979. 

v.  Wilson,  1903. 
Rothwell  v.  Paine,   1330. 
Rottenberg  v.   Stajer,   2025. 
Rouge  v.   Rouge,   1393,   1455. 
Rouget  v.  Haight,  S26,  839,  841,  1064. 
Round  Lake  Ass'n  v.  Kellogg,   1564. 
Rourke   v.    Domestic    Sewing   Mach. 
Co.     1923. 

v.  Elk  Drug  Co.,   4048. 
Rouse  v.  Goodman,   3319. 
Roussell  v.  St.  Nicholas  Ins.  Co.,  404, 

909. 
Rovnianek   v.    Kossalko,    2578,    2642. 
Row  v.  Sherwood,  357,   2991. 
Rowe  v.   Comley,   2306. 

v.  Gerry,  4119. 

v.  Guilleaume,    3208. 

v.  Patterson,  31. 

v.  Peckham,   187,  2795. 

v  Rowe,    4112. 

v.  Thompson,  519. 

v.  Washburn,  868. 
Rowell  v.   Crofoot,  573. 

v.  Giles,  2560. 

v.  Janvrin,    851,    925,    1034,    1082. 

v.  Moeller,    1027. 
Rowland,  Matter  of,   3277. 
Rowland    v.    Kellogg,    1027. 

v.  Phalen,    853. 

v.  Rowland,    2562. 
Rowlands  v.  Y.  M.   C.  A,   2617,   2643, 

2644. 
Rowles  v.   Hoare,    1524. 
Rowley  v.   Feldman,   327,   3239,   3241, 

4066. 
Rowne  v.  McGovern,  82. 
Roy  v.  Targee,  2237. 

v.  Thompson,    2129,    2131. 
Royal  Baking  Powder  Co.  v.  Hoag- 

land,    4058. 
Royal  Insurance  Co.   v.  Noble,   1346, 

1503. 
Royce   v.    Gibbons,    4028. 

v.  Jones,  2941. 

v.  Maloney,    842. 


4302 


TABLE  OF  CASES. 
[BEFEBENCES   ARE   TO   PAGES.] 


v.    Fielding,    61, 


2712, 


i;,  \  er    Wheel    Co 

3391,   3417. 
Rozelle  v.    Andrews,  3045. 
Rubbins  v.   Mariano.   ;^. 
Rubenfeld    v.     Rabiner,    2<08, 

RuJkerl  v.  Bursley,  {'J^  , 
Ruckman  v.  Cowell,  100,  3U-. 
liml.l   v.   Davis,   2290 

v    Robinson,    ..00:>. 
Rudolph  v.  Rudolpb,  725. 

v.  Third  Ave.   R  Co.  lb»7. 

Ruegamer  v.  Cieslinskie     U69. 

Ruellan  v.  Stillwell,  1038. 

R«een   v.  Collins,  2906. 

Ruler    v.    Fayhs    Watch-Case    Co 
29  1  4 

lluss  v.  Spencer,  3289. 

Ruggles  v.  Fogg,  2000. 
v.Hall,    2712. 

Ruhe  v.   Law,    3241. 

Ruhl  v.    Heintze,    4160 

Ruiz  v.   Renauld,    2<28d. 

Ruland   v.   Canfield  Pub.  Co.,   742. 

Ruloff'S   Case,    2242. 

Rundell  v.  Butler,  2270. 

Rundle  v.  Allison,   39,   4,1,  942,  2b9U, 

.1  ;|-J.| 

v.  Gordon,  I860 
Runk  v.  St   John   133    1541.  3137. 

Rupert  v.  Lee,  3340 ,3641. 
Rupp,  Matter  of,  162  1 63 
Ruppert    v.    Haug,    1440,    144-s,    i"-5- 

Ruser'v.   Union   Distilling   Co., 

1546.  corn 

Rusher  v.  Brennan,  2291. 
Rusk  V.   Marston    260,,    3S57. 

v  Van   Benschoten,   696. 
Russ  v.   Campbell,   1789. 

v.  Maxwell,   3645. 
Russell     V.     Agricultural     Ins. 
2729 
V.Allen,' 3144,   3166,   3167. 
v  Champion,    1365. 
v.  Clapp,  824. 
V.  Dean,   1429. 
v.  Gibbs,   3104,   3134. 
V.  Lane,    2957. 
V.  Lvth,    3047,    3049, 
v.  Meaeham,   1704. 
v.Randall,      2656, 

3873. 
v.  Somerville,  3281. 
Russell    &    Co.    v.    McSwegan,    1 

Ruft  v.  Eckler,  1754    1758    1759 
v.  Hauselt,       2634,       2640, 

Rutherford  v.  Krause,  889. 
v.  Schattman,  2392. 

v  Town   of  Madrid.   1891. 
Rutherfurd  v.   Myers,   1918 
Rutkowsky  v.   Cohen,   18,4. 
Rutter  v.   Boyd,   1502 

v.  Germicide  Co.,   lbo4. 

v.  Puckhofer,   93. 
Rutty  v.  Consolidated  Fruit  Jar  Co., 
1  033 

v  Person,  2157,  2160,  2568,   2573, 
2929,    3010. 
Rutzkowski  v.  George    3942. 
Ryall   v.    Kennedy,    1280. 


Ryan,  Matter  of,  3336,  3337. 
Ryan    v.    City    of    New    York,    1017, 
4053. 

v.Duffy,    1038. 

v.  Farley,   2900,   2913. 

v.  Hook,  138. 

v.  Lewis,   977. 

v.  McElroy,   2957. 

v.  Manhattan   Ry.   Co.,   2281. 

v.  Miller,  2335. 

v.  Parr,  3914.  ^nnA 

v  Porter   Mfg.   Co.,   2304. 

v.  Potter,   1891. 

v.  Rand,  1644. 

v.  Reagan,  1797. 

v.Webb,   678,  679. 
Ryckman   v.    Coleman,    1579,    1595. 

v.  Parkins,  1646. 

v.  Ryckman,  336. 
Ryder  vf  Gilbert,  3103,  3117,  3135. 
Ryers,  Matter  of,  193,  197,  229. 
Ryers   v.Hedges,    578. 
Ryle  v.  Falk,   3207 

v.  Harrington,   905. 


713, 


Co., 


3050. 
2732, 


2733: 


Saalfield  v.  Cutting,  872 
Sabater  v.  Sabater,   2599    2809    3o94. 
Sabin  v.   Kendrick,   772,    774,   1389. 
Sacia  v.  De  Graaf,  451. 
Sack,   Matter  of,    492. 
Sacker  v.  Marcus,    4045. 
Sackett  v.  Ball,   2999,   3004. 
v.  Breen,    286. 
v.  Newton,    816,    3256. 
v  New    York    &    N.    H.    R.    Co., 

2649. 
v.  Spencer,    2284. 
v.  Thomas,    3905. 
Sadler  v.  Lyon,   3246,  3247. 
Sandier  v    City  of  New  York,  4170. 
Safetv  Electric  Const.  Co.  v.  Cream- 

er    1576 
Safety  Steam-Generator  Co.  v.  Dick- 
son  Mfg.   Co.,    3007. 
Saffier  V.  Haft,  3041 
Safford  v.   Douglas,   3421. 
v.  Safford,    2645. 
v.  Snedeker,   1008. 
Saee  v.   Cartwright,   3138. 
v.  Culver,    1000,   1001 
v  Mosher,  1052,  2589,   2590,  3415, 

3431. 
v.  Quay,  1560. 
v  Shepard  &  Morse  Lumber  Co., 

2566. 
v.  Volkening,    3797. 
v.  Woodin,  3104,  3105. 
Sailly  v.  Cleveland,  144. 

v.  Hutton,   1948. 
Sainberg  v.  Weinberg,  329 
c:t     Amant  v.  De  Beixcedon,  143d. 
it    Clafi -Paper  Mfg.   Co.   v.   Brown, 

St18James    Co.    v.    Security   T.    &   L. 

St1  JSohn°v. American  Mut.  Life  Ins. 
Co.,  391. 
v.  Beers,  847. 
v.  Coates,    439,    2158. 
v  Croel,    2076,    2084,    2098,    3632, 
3633. 


TABLE  OF  CASES. 


43u3 


[references  are  to  pages.] 


St.  John  v.  Denison,  1649. 

v.  Diefendorf,  292. 

v.  Hart,  2117. 

v.  Northrup,   906. 

v.  Thorne,    1703,    1704. 

v.  Voorhies,   3080,   3084. 

v.  West,   3630. 
St.  Lawrence  &  A.  R.  Co.,  Matter  of, 

892. 
St.   Michael's   P.   B.   Church  v.    Beh- 

rens,   3835. 
St.     Nicholas     Bank     v.     State    Nat. 

Bank,   117. 
St.   Regis   Paper  Co.   v.    Santa  Clara 

Lumber  Co.,  1583. 
Saints     Peter     and     Paul's     Church, 

2551. 
Sale   v.  Lawson,   3257. 
Saleeby  v.  Central  R.   of  N.  J.,  4108. 
Sales   v.    Woodin,    1920. 
Salhinger  v.  Adler,    1309. 
Salinger  v.  Lusk,   948. 
Salisbury,  Matter  of,   4080. 
Salisbury    v.    Bennett,    1028. 

v.  Binghamton    Pub.     Co.,     2104, 
2113. 

v.  Cooper,  766. 

v.  McClaskey,  2193,  2199,  2702. 

v.  McGibbon,    768. 

v.  Scott,    2576. 

v.  Strong,    2113. 
Sallinger   v.    Adler,    732. 
Sails  v.  Butler,  3687,  3710. 

v.  Sails,    2902. 
Salmon,   Matter  of,    583. 
Salmon  v.   Gedney,   165,   2105. 
Salsbury  v.  Parsons,  1418. 
Salter  v.  Bowe,   3135. 

v.  Bridgen,    657. 

v.  Utica   &    Black   River   R.    Co., 
2285,   2989,   3958. 

v.  Weiner,   1415. 
Salters  v.   Genin,   1041. 

v.  Pruyn,  804. 

v.  Sheppard,   3848. 
Salt    Springs    Nat.    Bank    v.    Sloan, 

2286. 
Saltus  v.  Genin,  844,  2764. 

v.  Kipp,   2864. 
Saltzman  v.  Northrop,   1875. 
Salzberg  v.  Mandelbaum,    1449. 
Sammis  v.  Nassau  L.  &  P.  Co.,  3994, 
4009,   4010. 

v.  Smith,   1420,   1430. 
Sammons  v.  Parkhurst,   4046. 
Samuel   v.    Fidelity   &  Casualty  Co., 

54. 
Samuel     Cupples     Envelope     Co.     v. 

Lackner,  4080. 
Samuels  v.   Bryant,   2864,   2867. 
Sanborn    v.    Elizabethport   Mfg.    Co., 
1504. 

v.  Lefferts,    2285. 
Sanchez  v.  Dickinson,  858. 
Sand    v.    Church,    2949. 
Sander   v.    New    York    &   H.    R.    Co., 

3967. 
Sanders  v.   Ader,   1567,   1574.    1575. 

v.  Failing,    2981. 

v.  New  York  El.   R.  Co.,   2070. 

v.  People's  ''o-Op.  Ice  Co.,  4104, 
4137,   4138. 

v.  Riedinger,  463. 


Senders  v.   Siebert,  1291,   1321. 

v.  Souter,    300,    871,    906. 

v.  Townshend,   396  4. 
Sanderson  v.  Bowen,   2350,  2700. 
Sandford  v.   Carr,   3322,   3323. 

v.  Goodwin,   3264. 

v.  McLean,  3150. 

v.  Roosa,   3161. 

v.  Sandford,   335. 

v.  Sinclair,   2117. 
Sandiford  v.  Frost,  3138. 
Sandland   v.   Adams,    538. 
Sandman  v.   Seaman,    3208. 
Sands,  Matter  of,   4143. 
Sands  v.  Bullock,  2937. 

v.  Calkins,    1003.    1022. 

v.  Campbell,   503. 

v.  Gelston,    524. 

v.  Hughes,    462. 

v.  Kimbark,    2667. 

v.  Perrv,  2835. 

v.  Roberts,  3364. 

v.  St.    John,    910. 

v.  Sands,    3004. 

v.  Sparling,   2240,  2268. 
Sanford  v.  Chase.  731,  1310,  1912. 

v.  Commercial     Travelers'     Mut. 
Ace.   Ass'n,   2143. 

v.  Ellithorp,    2269. 

v.  Rhoads,    959,    4108, 

V.  Sanford,  502,   512,   3653. 
Sanford  Dairy  Co.   v.   Sanford,   1575. 
Sanger  v.   Connor,   4082. 

V.  French,   955. 

v.  Seymour,    1840. 
Sangunitto  v.  Gokley,  4146. 
San    Remo    Hotel    Co.    v.    Brennan, 

1579. 
Santee   v.    Standard    Pub.    Co..    2180, 

2196,    2201. 
Santos'  Estate,  Matter  of,  2627,  2628. 
Saranac    &    L.    P.    R.    Co.    v.   Arnold, 

2121,    2286. 
Saratoga    Gas   &   Elec.   Light   Co.    v. 
Hazard,   1321,   1347. 

v.  Town,    3842. 
Saratoga    &    W.    R.    Co.    v.    McCov, 

2993,  3009. 
Sardy,  Matter  of,  285,  286. 
Sares  v.  Matthews,   1992,  1997. 
Sargeant  v.  Mead,  784. 
Sargent  v.  ,    2714,   2735. 

v.  Bennett,    3263. 

v.Sargent   Granite   Co.,    52.    l 
2935. 

v.  Warren,  2983. 
Saril  v.  Payne,  538. 
Sartos     v.     Merceaues,     1338.     1362, 

1377. 
Sartwell  v.  Field,   1268,  1383. 
Satterlee  v.  De  Comeau,  341,  1809. 
Sauer  v.  City  of  New  York,  430. 
Saugerties  Bank  v.  Mack,   3428. 
Saulsbury  v.  Village  of  Ithaca,  2247. 
Saumljy   v.   City   of   Rochester,    2316. 
Saunders  v.  Goldthrite,  2925. 

v.  Reilly,  3114. 
Savacool   v.   Boughton,   1543. 
Savage  v.   City  of  Buffalo,    906,   977. 

v.  Cock,   4031. 

v.  Darrow,   3944. 

v.  Hicks,   2682. 

v.  Neely,   1784. 


4304 


TABLE  OF  CASES. 


[REFERENCES   ARE   TO   PAGES.] 


Savage  v.   Relyea,  62  i,  627.  , 

v.  Sherman,    2623,    2636. 

v.  Third   Ave.   R.  Co.,  2200. 
Saval]  v.  Wauful,  3107. 
Savings     Ass'n     of     St.     Louis     v. 

O'Brien,  117. 
Savin's  Application,  In   re,   1770. 
Sawyer  v.    Bennett.   955,   961. 

v.  Chambers,    421. 

v.  Clark,   1960. 

v.  Schoonmaker,   574. 
Sawyer  Lumber  Co  ,   W.   H.  v.   Bus- 
sell,    1442. 
Saxton   v.   Dodge,    141,    657. 

v.  New    York    El.    R.    Co.,    2161, 
2162. 
Saver   v.   Kirchhof,    3843. 

v.  Mac-Donald.    3281-3283. 
Savles  v.   Best,   2798. 

v.  Navlor,    3366. 

v.  Sims,    2289. 

V.  Wooden,    S45. 
Sayre,   Matter   of,    1788. 
Savre  v.   State,   3907. 
Sayres  v.  Miller,  2860. 
Sbarboro  v.  Health  Dept ,  965. 
Scandinavian      American      Bank     v. 

Lentzy,   1S98. 
Scarry    v.    Metropolitan    St.    R.    Co., 

4119. 
Scattergood   v.   Wood,   2649. 
Schadle  v.  Chase,  1286,  1302. 
Schaefer  v.  Henkel,  386. 

v.  Metropolitan      St.      Ry.      Co., 
2330. 
Schaettler  v.'  Gardiner,   2634. 
Schaffer  v.  Schaffer,  2025. 
Schalk  v.  Norris,   2270. 
Schanck  v.  Conover,  3283,  3336. 

v.Morris,    2318. 
Schantz  v.   Oakman,   1013. 
Schanz  v.   Martin,   2848. 
Schappner    v.    Second    Ave.    R.    Co., 

2350. 
Schattman    v.    American    Credit    In- 
demnity Co.,  2243. 
Schaughnessy  v.  Reilly,  2960. 
Schaus  v.  Manhattan  Gas-Light  Co., 

946. 
Schecker  v.  Woolsey,   620. 
Scheider  v.  Corby,  2694. 
Scheidt  v.   Sturgis,  2822. 
Scheier  v.  Tyrrell,  1027. 
Schell,  Matter  of,  286. 
Schell  v.  City  of  New  York,  283. 

v.  Cohen,  2044. 

v.  Lowe,  1860,   1867. 
Schellev  v.  Diehl,  2345. 

v.  Zuils,  3211. 
Schelly  v.  Zink,  3213. 
Schemerhorn  v.  Jenkins,  93. 
Schenck  v.   Barnes,   3401,   3403,   3621. 

v.  Dart.  3902. 

V.  Erwin,    3270,    3282,    32S3,    3329, 
3332. 

v.  Fancher,  2115. 

v.  Ingraham,  431. 

v.  Irwin,  197,  3647. 

v.  McKie,   630,   660,   663. 

v.  Naylor,  829. 
Schenectady      Contracting      Co.      v. 
Schenectady  R.  Co.,   4113,  4169. 


Schenectady  &  S.  Plank  Road  Co    v. 

Thatcher,  2786,   2788,   2789. 
Schenke  v.  Rowell,  675. 
Schepmoes  v.  Bousson,  1779,  1786. 
Schermerhorn  v.  Anderson,  3728. 

v.  Barhvdt,   3144. 

v.  Develin,   2594. 

v.  Glens  Falls  Portland   Cement 
Co.,  4051. 

v.  Merrill,   1595. 

v.  Miller,  3139. 

v.  Noble,  2943. 

v.  Owens,  3266,  3288. 

v.  Van  Voast,  3029,  3036. 

v.  Wood,  3632. 
Scheu  v.  New  York,  L.  &  W.  R.  Co., 

S38 
Schieb  v.  Baldwin,   1499. 
Sehieck  v.  Donohue,   4106. 
Schieffelin  v.  Hawkins,  1566. 
Schierloh  v.  Schierloh,  3247. 
Schiff  v.  Tamor,  4176. 
Schile  v.  Brokhahne,  879. 

v.  Brokhahus,  2336. 
Schiller  v.  Maltbie,  823,  2937. 

v.  Weinstein,     4082,     4083,     4172, 
4176. 
Schilling   Co.    v.    Robert    H.    Reid    & 

Co.,   4116. 
Schillinger  v.   McGarry,  2282. 
Schillinger     Fire-Proof     Cement     & 

Asphalt  Co.  v.  Arnott,  73,  2151. 
Schlesinger,   Matter   of,    510. 
Schlesinger  v.   Burland,   4116. 

v.  Columbian  Fire  Ins.  Co.,  3886. 

v.  Foxwell,  1309. 

v.  McCabe,  1513. 

v.  McDonald,  4127. 

v.  Thalmessinger,       4097,       4106, 
4113. 

v.  Wise,   4127. 
Schlesinger's      Estate,      Matter      of,. 

2072. 
Schlessinger  v.   Springfield   F.   &   M. 

Ins.  Co.,  2686. 
Schlichter  v.    South   Brooklyn    Saw- 
Mill  Co  ,  20S7,  2088. 
Schlimbach  v.  McLean,  4051. 
Schloman,  Matter  of,  2072. 
Schloss  v.  Schloss,  1415,  1641. 

v.  Wallach,  3322. 
Schlosser  v.  Stern,  2244. 
Schlotterer,  In  re,  4083,  4142. 
Schlotterer    v.     Brooklyn     &    N.     Y. 

Ferry  Co.,  2720. 
Schluter  v.   Bowery  Sav.   Bank,   850. 
Schmalholz  v.   Polhaus,   814. 
Schmalz  v.  Hauseman,  2370. 
Schmerber  v.  Reinach,  1790. 
Schmid  v.  Arguimban,  1021,  1081. 
Schmidt  v.  Barry,  3128. 

v.  Brown,  2693,  2905. 

v.  Cohn,  2728,  3787. 

v.  Eiseman,  1892. 

v.  Hoffman,   2005,  2007,   2013. 

v.  Lau,  262. 

V.Livingston,  326,  3768. 

v.  Selinger,   1855. 
Schmitt  v.  National  Life  Ass'n,  1029. 
Schmitzer  v.  Willner,   3303. 
Schnaderbeck  v.  Worth,  977. 
Schnaier  v.  Schmidt.  410. 


TABLE  OF  CASES. 


4305 


[REFERENCES  are  to  pages.] 


Schneible  v.  Travelers'  Ins.  Co.,  279. 
Schneider  v.  Altman,   3322. 
v.  Levy,  2881. 
v.  Rochester,  3010. 
v.  Second  Ave.  R.  Co.,  2292. 
Schnitzler     v.     Oriental    Metal    Bed 

Co.,  4167,  4168. 
Schnugg   v.    New    York    El.    R.    Co., 

2612. 
Schoeller,  Matter  of,  1782. 
Schoellkopf  v.  Ohmeis,  799,  2810. 
Schoen  v.  Schlessinger,  93,  29*60. 

v.  Wagner,  3883. 
Schoenberg   R.   A.    &   Co.    v.    Loftus, 

1808. 
Schoener  v.   Lissauer,   472,   488. 
Schoenholtz    v.    Third    Ave.    R.    Co., 

2321,  2336. 
Scholey  v.  Halsey,   83,   3910. 
Schoonmaker  v.  Blass,  1042. 
v.  Bonnie,  3963. 
v.  Brooks,  722. 
v.  City  of  New  York,  1081. 
v.  Hilliard,   2676. 
v.  Spencer,  1397. 
v.  Vervalen,  3102. 
v.  Wolford,  3814. 
Schouton  v.   Kilmer,    1426. 
Schram  v.  Werner,   2723. 
Schrauth    v.    Dry    Dock    Sav.    Bank, 

3327. 
Schreiber  v.  Heath,  4060. 

v.  Raymond    &    Campbell    Mfg. 
Co.,  324,  326. 
Schreier  v.  Hogan,  1888. 
Schreyer  v.  Arendt,  4044. 

v.  City  of  New  York,  1026. 
v.  Deering,  289,  628. 
v.  Dooley,   915. 
Schrieber  v.  Goldsmith,  4108. 
Schroeder  v.  Becker.  829,  832. 
v.  Fredericks,  2379. 
v.  Frey,  1814. 

v.  Hudson  River  R.  Co.,  82,  83. 
v.  Kohlenback,  2126. 
v.  Lear,  765,  766,  772. 
v.  Post,  833. 
v.  Young,  1067. 
Schroeppel  v.  Dingman,  3106. 
Schryer  v.  Fenton,  3883. 
Schryver    v.    Metropolitan    Life    Ins. 

Co.,  743. 
Schubart  v.  Harteau,  969. 
Schudder  v.  Shiells,  1286. 
Schuehle  v.  Reiman,  652. 
Schuhardt  v.  Roth,  940. 
Schuhle   v.   Cunningham,    2274,   2335. 
Schulhoff      v.      Co-operative      Dress 

Ass'n,  860,  2577. 
Schulsinger  v.  Blau,  3670,  4044. 
Schulte  v    Lestershire  Boot  &  Shoe 

Co.,  1998,  1999. 
Schulten  v.  Lord,  1565,  1595. 
Schultes,  In  re,  99. 
Schultz     v.      Greenwood     Cemetery, 
4106,  4118. 
v.  Hoagland,  2771. 
v.  Rubsam,   4099. 
v.  Third    Ave.    R.   Co.,   1889,   1901, 
2260,  2359,  2713,  2733. 
Schultze  v.   Rodewald,  1077. 
Schulz  v.  Harris,   1290. 
Schulze  v.  Sizer,  1629. 

N.  Y.  Prac—  270. 


Schum  v.  Rochester,  3033,  3037. 
Schumaker  v.  Crossman,  771. 
Schuman    v.    Brooklyn    Heights    R. 

Co.,  1674. 
Schumann  v.  Davis,  1479. 
Schumpp    v.    Interurban    St.    R.    Co., 

Schun   v.    Brooklyn   Heights    R.   Co., 

422,   4070,   4118. 
Schunemann  v.   Paradise,   1307. 
Schuster  v.   Ganzenmuller,   2248. 
Schusterman  v.  Schwartz,  2286. 
Schutz  v.  Morette,  520. 

v.  Union  R.  Co.,  4160. 
Schuyler  v.  'Englert,   1330,   1331. 
v.  Hargous,  1864. 
v.  Peck,  837. 
v.  Smith,  1084,   2594. 
Schuyler's     Steam     Tow     Boat     Co. 

Matter  of,   1483,   1635. 
Schwab  v.  Cohen,  3323. 
v.  Furniss,  1014. 
v.  Wehrle,   1024. 
Schwan   v.   Mutual  Trust  Fund  Life 

Ass'n,   989. 
Schwartz  v.  Green,   868,  875. 
v.  Jenney,  291,  292,  306. 
v.  Poughkeepsie     Mut.     F.     Ins 

Co.,   3002,   3024. 
v.  Schwartz,  1280. 
v.  Scott,   1896,   1899. 
v.  Wolfrath,  1682,   1685,  3635. 
Schwartzchild    &    Sulzberger    Co.    v. 

Mathews,   3430. 
Schwarz  v.  Livingston,  661,  2553 
v.  Oppold,  902. 
v.  Robbins,   1958. 
v.  Weber,   2654,  2657. 
Schwarzler  v.  McClenahan,   947. 
Schweiger    v.    German    Sav.     Bank. 

1863,  1864. 
Schweizer  v.  Raymond,  2824,  2830 
Schwier  v.  New  York  Cent.  &  H    R. 

R.  Co.,  2284. 
Schwinger     v.     Hickok,     2963      3152 
3153.  ' 

v.  Raymond,  2679,  3871. 
Sciolina  v.  Erie  Preserving  Co.,  149 
3608,   3703.  ' 

Scofield  v.  Demorest,  955,  988. 
v.  Doscher,  85. 
v.  Kreiser,  1309,  3209. 
Scott  v.   Beaudet,   1447. 
v.  Brown,   2069. 
v.  City  of  New  York,  2211. 
v.  Duncombe,  1649. 
v.  Durfee,  3280. 
v.  Elmore,  3361. 
v.  Farley,   3959. 
v.  King,  115. 
v.  Montells,  984. 

v.Morgan,  1541,  2678,  3120,  3857. 
v.  Nevius,  3263. 
v.  Pilkington,  3865. 
v.  Reed,  1293. 
v.  Royal     Exch.      Shipping     Co., 

908. 
v.  Rues,  2196. 
v.  Rushman,  4013. 
v.  Stebbins,  472. 
v.  Throp,  2928. 
v.  Williams,  2606. 
Scott  Shoe  Mach.  Co.  v.  Dancel,  733. 


4C06 


TABLE  OF  CASES. 


[REFERENCES    ARE   TO   PAGES.] 


Scouton  v.  Bender,  3417. 
Scoville  v.  Kalladay,  3404. 

v.  Kent.   - 

v.  Shed,  3404. 
Scrafford,  Matter  of,  3643. 
Scranton  v.  Baxter,  2100. 
Scribner  v.  Levy,  992. 
Scroggs  v.  Palmer,   924. 
Scudder  v.  Curtis,   2047. 
v.  Gori,   2904. 
v.  Snow,   2554,   2573. 
Seaboard  &  R.  R.  Co.  v.  Ward,  2109, 

2123. 
Seabra,  Matter  of,  2040. 
Seacord  v.  Burling,  2198. 

v.  Morgan,   675,   3772,  3921. 
Seagrist  v.   Sigrist,   2818,   3003,   3004, 

3018. 
Seaman  v.  Clarke,  1029,  2732. 
v.  Drake,   1363. 
v.  Hasbrouck,   381. 
v.  Koehler,  2711. 
v.  Luce,  1419. 
v.  MeClosky,   1023. 
v.  MeRevnolds,   2173,   3719. 
v.  Pike,   3305. 
Seamans    v.    Barentsen,    4107,    4113, 

4129. 
Searls,  Matter  of,  1774,  1977,  1983. 
Sears  v.  Burnham,  2792,  2793. 
v.  Conover,  2697. 
v.  Gearn,   1407. 

v.  Metropolitan  El.  Ry.  Co.,  2151. 
v.  Sears,  725. 
Seasongood  v.  Fleming,  848. 

v.  New  York  El.  R.  Co.,  2987. 
Seaver  v.  City  of  New  York,  1040. 
Seaving  v.  Brinkerhoff,  2885. 
Seblev  v.  Nichols,  2986. 
Sebring    v.    Stryker,    731,    732,    1973, 

4019. 
Second  Ave.   R.   Co.  v.  Metropolitan 

El.  R.  Co..  1046. 
Second  Nat.  Bank  v.  Burt,   45. 
v.  Dunn,   325. 

v.Weston,  2287.  2294,  2298,  2300. 
Secor  v.  Clark,  2091. 
v.  Law,  1043. 
v.  Pendleton,  997,  1006. 
v.  Sturgis,  54,  487. 
v.  Weed,   1594,   1597. 
Security    Bank    v.     National    Bank, 

3631,  3636. 
Security    Fire    Ins.    Co.    v.    Martin, 

2606. 
Security    Life    Ins.    &    Annuity    Co., 

Matter  of,  1655,  1656. 
Sedgwick  v.  Fish,  3223. 
v.  Hollenback,  3216. 
v.  Macy,  2724. 
Seebor  v.  Hess,  2937. 
Seelev  v.  Bisgrove.  2340. 

v.  City  of  Amsterdam,  2774. 
v.  Clark,  1776. 
y.  Engell,   944,  1063. 
-v.  Garrison,   3286,   3294,   3304. 
Seelev's  Case,  2607. 
Seelv"  v.  Shaffer,  2695. 
Seerhan  v.  Reiche,  1516,  3780. 
Segal  v.  Cauldwell,  1896. 
Segelke  v.  Finan,  2365,  3203. 
Segelken  v.  Meyer,  29,  89. 


Seggerman    v.    Metropolitan    St.    R. 

Co.,  274  1 
Seguine  v.  Seguine,  3960. 
Seidenbach  v.  Riley,   2364. 
Seidenspinner    v.    Metropolitan    Life 

Ins.  Co.,  3871. 
Seifert   v.    Caverly,    660,    666. 

v.  Schillner,  2976. 
Seifter  v.   Brooklyn   Heights  R.  Co., 

2965,   3019. 
Seigel  v.   Heid,   2576. 
Seiler  v.   Wilson,    766. 
Seipp  v.  Dry  Dock,  E.  B.  &  B.  R.  Co., 

2259. 
Seitz    v.    Berg,    2919. 
Selden   v.    Vermilya,    1603,    3925. 
Seletsky  v.  Third  Ave.  R.  Co.,   1689. 
Seligman  v.  Falk,  1499,  1500,  1501. 
v.  Franco-American    Trading 

Co.,  2890. 
v.  Real-Estate    Trust    Co.,    1840, 

1846,   2936. 
v.  Schmidt,   1069. 
v.  Sivin,    4167,    4168. 
v.  Wallach,   3322. 
Seligsberg  v.   Schepp,   1847,   3713. 
Selkirk    v.    Wood,    63,    1694. 
Sellig   v.   Mclntyre,    3266. 
Selliman  v.  Paine,   463. 
Selover  v.   Forbes,  585,  2877. 
Selpho  v.  City  of  Brooklyn,  495. 
Selser   Bros.    Co.    v.    Potter   Produce 

Co.,  1436,  1445,  1448,  1523. 
Seltman   v.    Jaschenorosky,    1449. 
Selye   v.    Zimmer,    29. 
Semken,  Matter  of,   206. 
Seneca    County    Bank     v.     Garling- 

house,   1022. 
Seneca  Nation  of  Indians  v.  Knight, 

3609. 
Senft    v.    Manhattan    R.    Co.,    2073, 

2078. 
Sentenis  v.  Ladew,   126,   127,   3018. 
Sergent  v.  Liverpool  &  L.  &  G.   Ins. 

Co.,   3891. 
Sermont  v.   Baetjer,   2617. 
Serrell    v.    Forbes,    4078,    4122. 
Serven  v.  Lowerre,   1420,   3329,  3334. 
Serwer  v.  Serwer,  2693,  4061,  4063. 
Settle  v.  Van   Evrea,   223,   2583. 
Seventeenth  Ward  Bank  v.  Webster, 

2065,    2069. 
Severin  v.  Hopper,  2128,   2131. 
Seward   v.   Jackson,   2360,   2769. 

v.  Wales,   3211. 
Sewell  v.  Butler,   1819,  1821. 
Sexaner  v.    Bowen,   894. 
Sexton   v.   Bennett,    196. 

v.  Home  Fire  Ins.  Co.,   1865. 
v.  Onward  Const.  Co.,  2252,  4159. 
Sevbolt  v.  New  York,  L.  E.  &  W.  R. 

Co.,   2331. 
Seydel    v.    Corporation    Liquidating 

Co.,   4092,   4127. 
Seymour,  Matter  of,  3363,   3364. 
Seymour  v.   Ashenden,   2977. 
v.  Billings,    2993. 
V.  Davis,    968. 
v.  Hazard,    1296. 
v.  Judd,    812. 

v.  Lake    Shore    &    M.    S.    R.    Co., 
2125,  2128,  2130. 


TABLE  OF  CASES. 


4307 


[references  are  to  pages.] 


Seymour  v.   Newton,   3103. 

v.  Spring-        Forest        Cemetery 
Ass'n,    3666,   3667,   3841. 

v.  Warren,  1086. 

v.  Wilson,  1648,  2244,  3262. 
Seymour's  Ex'rs  v.  Strong',  1735. 
Shackleton  v.   Hart,    295. 
Shafarman   v.    Jacobs,    1029. 
Shafer  v.  Humphrey,   815. 

v.  Pratt,  4079. 
Shaffer   v.    Holm.    S68,    873. 

v.Martin,    2378,    2385,    3863. 

v.  Riseley,    3211. 

v.  Wilcox,    1744. 
Shale  v.  Schantz,  2093. 
Shaler  &  Hall  Quarry  Co.  v.  Brews- 
ter, 3828. 
Shand  V.  Hanley,  3426,  3427. 
Shankland   v.    Bartlett,    878. 
Shanks  v.  Magnolia  Metal  Co.,  1448. 

v.  National  Casket  Co.,  4113. 

v.  Rae,    1041. 

v.  Stumpf,  964. 
Shanks'  Case,  237. 
Shannon  v.  Brower,  2968. 

v.  Pickell,    1028,    3717. 

v.  Steger,    3329,   3355. 
Shaped    Seamless     Stocking    Co.     v. 
Snow  Church  Co.,  2074,  2077,  2078. 
Shapiro  v.  Burns,   1S73,  1S74,   1876. 

v.  Goldberg,   3910. 
Shapley  v.  Abbott,  455,  522. 
Sharkev  v.   Mansfield,    81. 
Sharp  v.  City  of  New  York,  2558. 

V.  Clapp,   728,   930. 

v.  Fancher,   1895. 

v.  Hutchinson,   1777. 
Sharpe  v.  Freeman,  2375. 
Shaughnessy  v.   Chase,    592. 
Shaunessy  v.   Traphagen,   307. 
Shaver   v.   Beates,   2701. 

v.  Brainard,    424. 

v.  Eldred,  2985,   3952,  3959. 
Shaw  v.  Broadbent,  45. 

v.  Bryant,   2218,  2680. 

v.  City  of  New  York,  4119,  4129. 

v.  Cock,    515,    516,    1030. 

v.  Coleman,    1706. 

V.  Davis,    1417.    1418,    4023. 

v.  Dwight,  3395,   3397. 

v.  Feltman.   4127. 

v.  Grant,   884. 

v.  Lambert,    521,    523. 

v.  Lawrence,    706. 

v.  Republic  Life  Ins.  Co.,  2011. 

v.  Tobias,    832. 
Shawe  v.  Wilmerden,  2117. 
Shawmut  Min.   Co.,   Matter  of,   4141. 
Shavne    v.    Evening    Post    Pub.    Co., 
2063,  2075. 

v.  White,  2364. 
Shea  v.  Cornish,  2646. 

v.  Manhattan  Ry.  Co.,  2327. 

v.  Smith,  125. 
Sheahy   v.    Tomlinson,    2567. 
Shearman    v.    Hart,    576,    608. 

v.  Henderson,    2301,   3891. 

v.  Jutice,   2625. 

v.  New    York    Cent.    Mills.    948, 
950,  1593,  1604. 

v.  Pope,   1873. 


Sheehan    v.    Albany   &    B.    Turnpike 
Co.,  1810. 

V.  Bradford,  B.  &  K.  R.  Co.,  731. 

v.  Carvalho,    639,    644,    1808. 

v.  Erbe,    4059. 

v.  Pierce,    975,    978. 
Sheehy   v.    Kelly,    3014. 

v.  McMillan,  1575. 
Sheffield   v.   Cooper,    337,    1586. 

v.  Rochester  &  S.  R.  Co..  2242. 
Sheffield    Farm    Co.    v.    Burr,    3349, 

3658. 
Shelby    Steel    Tube    Co.    v.    Burgess 

Gun   Co.,   4054. 
Sheldon  v.  Adams,   177,  1027,  3630. 

v.  Allerton,   1579. 

v.  Heaton,   1072. 

v.  Hoy,   921. 

v.  Mirick,  467. 

v.  Mott,  282. 

v.  Pyne,    3186. 

v.  Quinlen,   370. 

v.  Sabin,   952,    1458. 

v.  Saenz,    1643. 

v.  Sheldon,   489,   493. 

v.  Soper,    3129. 

v.  Steamship  "Uncle  Sam,"  28. 

v.  Weeks,   1632. 

v.  Westervelt,    3119. 

v.  Wickham,    3371. 

v.  Williams,    168. 

v.  Wood,    408,    537,    1727,    1765. 
Shelp  v.  Morrison,   1971. 
Shenfield   v.    Bernheimer,    2146. 
Shepard   v.    Eddy,    2139. 

v.  Hoit,    2975. 

v.  Manhattan  Ry.  Co.,  59,  76,  404, 
2159. 

v.  New  York   El.   R.   Co..   2587. 

v.  Philbrick,   3106. 

v.  Potter,    2226. 

v.  Squire,     362,     364,     1931,     1948, 
1950. 

v.  Whaley,   3222. 
Shepard     &    Morse    Lumber    Co.    v. 

Burleigh,   361,    363. 
Shepherd    v.   Dean.    235. 

v.  Moodhe,  1989,  1991,  1997,  2001. 
Shepmoes  v.   Bowsson,    1780,   1791. 
Sheppard   v.    Steele.    138. 
Sherff   v.  Jacobi,   925. 
Sheridan  v.   Andrews,   3692,    3922. 

v.  City  of  New  York,  375. 

V.  Farnham,  272. 

v.  House,    3138,    3139. 

v.  Jackson,    829,    1082. 

v.  Kelly,    2870. 

v.  Linden.  2791. 
Sherill     Roper    Air    Engine    Co.     v. 

M;n\vood,  1293. 
Sheriii  v.  City  of  New  York,  1687. 
Sherin    Special    Agency    v.    Seaman, 

1885. 
Sherlock    v.    German-American    Ins. 
Co.,  2269,  2333. 

v.  Sherlock,   1334. 
Sherman  v.  Adirondack  Ry.  Co.,  352, 
1945,    1946. 

v.  Baeder,   2307. 

v.  Beacon  Const.  Co.,   1780,  1799, 
3650. 


430S 


TABLE  OF  CASES. 


[REFERENCES    AKE   TO   TAGES.] 


Sherman  v.  Boehm,   1077,   3632. 

v.  Boycc,   3065. 

v.  Conner,    740. 

v.  (ireen,  4014. 

v.  Gregory,       1943,      1948,      1950, 
1952,    1954. 

v.  Grinnell,   3021,  3199. 

v.  TIavward.    3366,    3105. 

v.  Hudson   River   R.   Co.,    2618. 

v.  Iiiman    St.am    Ship    Co.,    1085. 

v.Jenkins,    1013. 

v.  McCarthy,    4104. 

v.  Matthieu,    3946. 

v.  Parish,  401,  423. 

v.  Partridge,    1S62. 

v.  Scott,   2273. 

v.  Shisler,  4036. 

v.  Smith,    1304. 

v.Wells,    3682,    3710,    3725. 
Sherrill  v.  Campbell,  3212. 
Sherry  v.  Cary,   2916,  2917. 

v.  Fredericks,    2263. 
Sherwin  v.   People,   322. 

v.  Pierce,  3200,  3209. 
Sherwood  v.  Dolen,   3319. 

v.  Ellenstein,   2107. 

v.  Travelers'    Ins.    Co.,    4041. 
Shiblev  v.  Angle,  1043. 
Shidlovsky  v.  Cashman,  1315. 
Shields  v.   Niagara  Sav.   Bank,  2179. 
Shiels  v.  Wortmann,  3004. 
Shiland  v.  Loeb,  2010. 
Shilton  v.  Smith.  1S07. 
Shimer  v.  Mosher,   3130. 
Shindler  v.  Blunt,  3185. 
Shipman     v.     Bank     of     New     York 
State,   2566. 

v.  Long  Island  R.  Co.,  2085. 

v.  Scott,  1864. 

v.  Shafer,   1277,   1295. 
Shoe    &    Leather    Reporter   Ass'n   v. 

Bailey,   1840. 
Shoemaker  v.  Benedict,  519,  520,  525, 

531. 
Shoepflin   v.    Coffey,    2283. 
Shook  v.   ONeill,   2668. 
Shorer    v.    Times    Printing    &    Pub. 

Co.,    2850. 
Short,   Matter   of,   3198. 
Short  v.  Hooker,  1364. 

v.  Scutt,    3274,    3934. 
Shotwell  v.   Dixon,    2301,   3000,    3879. 

v.  Wendover,    2015. 
Shrady  v.  Shrady,  912. 

v.  Van   Kirk,    1638,    2809,    3594. 
Shrimpton    v.    Dworsky,    2327. 
Shriver    v.     Shriver,     468. 
Shufelt  v.   Power,   1733,  2975. 

v.  Rowley,  ,2982. 

v.  Shufelt,   2891. 

v.  Sweet,  2924. 
Shufflin  v.  People,   2326. 
Shuler   v.    Birdsall,    Waite    &    Perry 
Mfg.  Co  ,  1401,  1444. 
v.Maxwell,  276,  3230,  3597,  3710. 

v.  Meyers,   1034. 
Shull  v.   Green,   2924. 

v.  King,   1430. 
Shultes   v.    Sickles,    2298,    2299,    3071. 
Shults  v.  Andrews,  626,  3292,  3339. 
Shultz   v.   Whitney,    2592,   2985,    3037. 
Shuman  v.  Strauss,  1298,  3071. 


Shumway,   Ex  parte,   544. 
Shumway    v.    Fowler,    2732. 

v.  Stillman,   2844. 
Shuter  v.   Hallett,   2744. 
Shuttleworth  v.   Winter,   2711. 
Shutts  v.   Fingar,   490. 
Sias  v.  Rochester  Ry.  Co.,  116. 
Sibell  v.    Remsen,    2952. 
Sibley  v.  Equitable  Life  Assur.  Co., 
1862. 
v.  Smith,    1334.    1340. 
v.  Starkweather,    485. 
v.  Waffle,   665. 
Sicard  v.   Whale,    1275. 
Sickels  v.  Hanley,   3292,  3348. 
v.  Kling,    2663. 
v.  Pattison,    968. 
Sickle,  Matter  of,  3321,  3322. 
Sickles  v.   Combs,   3190. 
v.  Fort,    2599. 
v.  Hogeboom,    3157. 
v.  Manhattan  Gaslight  Co.,  1591. 
v.  Richardson,    3016,    3108. 
v.  Sullivan,   3100,    3101,   3113. 
v.  Wilmerding,    1863. 
Side  v.  Brenneman,  3867. 
Sidenberg  v.   Ely,   954,   1036. 
Sidmonds    v.    Brooklyn    Heights    R. 

Co.,  2741. 
Sidnev     B.     Bowman     Cycle    Co.     v. 

Dyer,  562,  874. 
Sidwav  v.   Sidway,   2164. 
Sidwell  v.   Greig,   3623. 
Siebert    v.    Milbank,    4085. 
Siebrecht   v.   Siegel-Cooper   Co.,   979. 
Sieff  v.  Shausenburgh,   1327. 
Siefke   v.   Siefke,    1669. 

v.  Tappey,  1282,   1306. 
Siegel  v.  Frankel,  4174. 

v.  Solomon,   3641. 
Siegert  v.   Abbott,  2818. 
Siegrist  v.  Hollowav,   2902. 
Sieling  v.  Clark,  2318,  2339. 
Siemon  v.   Schurck,   2799. 
Siersema  v.   Meyer,   4177. 
Sigua  Iron  Co.  v.  Brown,  2074,  2295, 

2299,    3885. 
Silberstein  v.  Stahl,  143. 

v.  Wm.  Wicke  Co.,  2915. 
Silkman,   Matter  of,   4059. 
Silleck  v.  Hevdrick,  780. 
Sillick  v.  Mason,   3403. 
Silliman  v.   Clark,   1666. 
Sill  Stove  Works  v.   Scott,  1435. 
Silo  v.   Linde,    621. 
Silsbee  v.  Gillespie,   3711,  3712,  3725. 
Silsbv  Mfg.  Co.  v.   State, '487. 
Silver  v.  Elias,  2027. 
v.  Krellman,    4111. 
v.  Western  Assur.  Co.,  747. 
Silver  Min.  Co.  v.  Knowlton,  2566. 
Silverman     v.     Baruth,     2125,     2130, 
2132. 
v.  Dry  Dock   E.   B.   &  B.   R.   Co., 

2743. 
v.  Foreman,    2226. 
v.  Simons,    2227. 
Silvernail,  Matter  of,  17,  283,  2606. 
Silverstein  v.  Ruggiero,  1329,  1330. 
Simar  v.  Canaday,  2293,  3864. 
Simis  v.  McElroy,   166,   3898. 
Simmons  v.  Bigelow,  2565,  2574. 


TABLE  OF  CASES. 


4309 


[references  are  to  pages.] 


Simmons    v.     Craig-,     549,     550,     576, 
2091,  2758. 
v.  Everson,  397. 
v.  Fairchild,    926. 
v.  Havens,    2252. 
v.  Hazard,  1796,  1799,  1S00,  1801, 

1802. 
v.  Johnson,   2629. 
v.  Kayser,   984. 
v.  Lyons,   3632. 
v.  Murray,    2236,   2713. 
v.  Richardson,    2227. 
v.  Simmons,   572,   622,   633,   839. 
v.  Sisson,    1092. 
v.  Vanderbilt,   1797. 
v.  "Wood,  1643. 
Simmons   Co.,   John   W.,   v.    Costello, 

924. 
Simms  v.   Frier,    3343. 

v.  Voght,   2390. 
Simon  v.  Aldine  Pub.   Co.,  680. 

v.  Borden's  Condensed  Milk  Co., 

2870. 
v.  Fleischauer,   1543. 
v.  O'Brien,   2903. 
Simonds  v.   Catlin,    3150,    3159,    3183. 
Simonowitz  v.   Schwartz,    2705. 
Simons  v.   DeBare,   99,   100. 
v.  Goldbach,    2886,    2892. 
v.  Martin     &     Gibson    Mfg.    Co., 
946     954. 
Simonson   v.    Blake,    928,   2763,    2764, 
2825. 
v.  Nafls,   507. 
v.  Wood,  3725. 
Simpkins  v.  Page,  3274. 
Simpson,  Matter  of,   16,   245. 
Simpson   v.  Brewster,   47,   1914. 
v.  Burch,    753,   1386,   1531. 
v.  Carter,   4015. 
v.  French,   2009. 
v.  Hefter,  2717,  3887,  4169. 
v.  Hornbeck,  639. 
v.  Jersey    City    Contracting'    Co., 
1383,    1411,    1412,    1467,    1468. 
v.  McKay,   2754,    2755,    2825. 
v.  Manhattan  Ry.  Co.,  2273. 
v.  Mayor,  1682. 
v.  New  York,  L.  E.  &  W.  R.  Co., 

2250. 
v.  Rowan,    2975,    2985. 
v.  Simpson,    353. 
v.  Watrus,   2271. 
Sims  v.  Bonner,  1886,  1897,  1901. 

v.  New    York    College    of    Den- 
tistry, 93. 
v.  Sims,   2691,   2734. 
Simson  v.  Brown,  382. 
v.  Chadwick,   3748. 
v.  Satterlee,    1016. 
Sinclair  v.  Neill,  2597. 
Sindram   v.   People,    2315,    2318. 
Siney     v.     New     York    Consolidated 

Stage  Co.,   1639. 
Singer  v.  Abrams,  4110. 
v.  Effler,   995. 
v.  Weber,  1064. 
Singleton    v.    Home    Ins.    Co..    1990, 
1999. 
v.  Thornton,  1073. 
Sinne  v.  City   of  New   York,    2988. 
Sinnit  v.  Cambridge  Valley  Agricul- 
tural  Soc,    1957,    1960,    3918. 


Sinnott  v.  First  Nat.  Bank  of  Hemp- 
stead,   3297. 
Sinskie  v.  Brust,  2932. 
Sippel  v.  Macklin,   3082. 
Sipperly  v.  Warner,   2974,  2975. 
Sippile  v.  Albites,  144,  414,   1595. 
Sire  v.  Kneuper,  1695. 

v.  Shubert,   4084,   4150. 
Siriani    v.    Deutsch,    964,    1068,    1070, 

1075. 
Sirrett,  Matter  of,  3041,  3272,  3274. 
Sissinch  v.  Bernhardt,   2246. 
Sisson  v.  Barrett,  2360. 

v.  Conger,    2237,    2262. 

v.  Cummings,  3871. 

v.  Hibbard,   3150. 

v.  Lawrence,  238,   939,   940. 
Sistare,   Matter   of,    3372. 
Sisters  of  Charity  v.  Kelly,  3964. 
Sivin   v.  Mutual  Match  Co.,   4166. 
Sixth  Ave.   R.   Co.   v.   Gilbert   El.    R. 
Co.,   590,   3782. 

v.  Kerr,   1598. 

v.  Manhattan  R.  Co.,  3669. 

v.  Metropolitan  El.  Railway  Co., 
2235. 
Sizer   v.   Hampton   &  B.   R.    &  Lum- 
ber Co.,  731,  732,  1440. 

v.  Miller,    2888. 
Skeels  v.   Bodine,   1912. 
Skidmore  v.   Davis,   3605. 
Skiff  v.  Stewart,  1450. 
Skillin  v.   Maibrunn,   3428. 
Skinner  v.  Allison,   2688,  3898. 

v.  Busse,    262. 

v.  Dayton,    1736. 

v.  Hannan,   168,  3120. 

v.  Noyes,   592,    2126. 

v.  Oettinger,   1403. 

v.  Quinn,   3663. 

v.  Skinner,  882. 

v.  Steele,    1787,    1789,    1795,    1808. 

v.  Stuart,    1497,    3413. 

v.  Walter    A.    Wood    Mowing    & 
Reaping   Mach.   Co.,    54. 

v.  White,   2977. 
Skinner  Mfg.  Co.  v.  Fagenson,  1342. 
Skoog  v.  New  York  Novelty  Co.,  797. 
Slack  v.  Brown,  2006,  2013. 

v.  Heath,   827. 
Slade  v.  Joseph,  733,  1301,  1320. 

v.  McMullen,    2294. 

v.  Montgomery,  976,  2294. 

v.  Van   Vechten,   3117. 
Slaman  v.   Buckley,   3996,   4013. 
Slater  v.   Drescher,   2721. 

v.  Jackson,    105,    733. 

v.  Mead,   2352. 

v.  Merritt,   1588. 

v.  Slater,   3017,  3817. 
Slater  Bank  v.   Sturdy,   2941. 
Slattery  v.  Haskin,  4002. 

v.  Schwannecke,   256. 
Slauson  v.  Englehart,   1060,  2207. 

v.  Watkins,   2945,   2948. 
Slayback  v.  Raymond,  4078. 
Slayter  v.   Smith,  2814. 
Sleeman    v.    Hotchkiss,    1034,     1671. 

3036. 
Sleeper   v.    Van   Middlesworth,    2255. 
Sleght  v.    Hartshorne,   2367. 

v.  Kane,    505. 
Sleicher  v.  Grogan,  1592,  2294. 


4310 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


Sleight  v.  Leavenworth,  219. 
S.    Liebmann's    Sons   Brewing  Co.   v. 
Cody,  878. 

v.  De  Nicolo,   4110. 
Slingerland  v.  Corwin,   4094,   4097. 

v.  International  Contracting  Co., 
873,   2907. 

v.  Moore,    2007. 

V.  Swart.    3135. 
Sloan    v.    New    York    Cent.    R.    Co., 
2258. 

v.  Waring,    3391. 
Sloane  v.   Livermore,   1348. 

v.  Lockwood    Chem.    Co.,   2664. 

v.  McCauley,    2743. 
Sloeovich    v.    Orient    Mut.    Ins.    Co., 
2240. 

v.  Oriental  Mut.  Ins.  Co.,  2225. 
Slocum   v.    Barry,    2952. 

v.  Stoddard,  449. 

v.  Watkins,   2599. 

v.  Wheeler,    994. 
Sluvter   v.   Smith,    721,    3039. 

v.  Williams,  2809,   3594. 
Smadbeck  v.  Sisson,  1441. 
Small,  Matter  of,  3614,  3615. 
Small   v.   McChesney,   3066. 

v.  Muller,    143,    1643. 

v.  Wheaton,   3071. 
Smalley   v.   Fulton  Bank,    2287. 
Smart  v.  Haring,   93. 
Smedberg  v.   Mark,   1296. 
Smedes'   Ex'rs  v.   Elmendorf   285. 
Smedis  v.  Brooklyn  &  R.   B.  R.  Co., 

2324. 
Smerling  v.   Foss,   1934. 
Smiley  v.  Fry,  493. 
Smith,   Matter   of.   2239. 
Smith,    In    re   Estate   of,    2063,    2080, 

2101. 
Smith  v.   Acker  Process  Co.,   4064. 

v.  Adams,    2757. 

v.  A.    D.    Farmer    Type    Found- 
ing   Co.,    2952. 

v.  Alker,    2032,    2034. 

v.  Allen,   4007. 

v.  American  Coal  Co.,  1412. 

v.  American  Turquoise  Co.,  1066. 

v.  Arnold,    1444. 

v.  Askin,   2818. 

v.  Aylesworth,     560. 

v.  Bach,    4123. 

v.  Baker,    3011. 

v.  Barnes,   2699. 

v.  Barnum,  3358,   3376. 

v.  Baum,    301. 

v.  Beattie,   3113. 

v.  Bingham,   2688. 

v.  Blood,  4131. 

v.  Bowers,   1993. 

v.  Bowes,    1999. 

v.  Brackett,   1428,   2797. 

v.  Bradhurst,    270,    2839. 

v.  Britt,    2118. 

v.  Britton,   86,   1017,   2842. 

v.  Brown,    853,   2560. 

v.  Bryant,    2906. 

v.  Bull,    348. 

v.  Burtis,    3121. 

v.  Camp,  520. 

v.  Carpenter,   530. 


Smith  v.   Cayugra  Lake  Cement  Co., 

4034,    4150. 
v.  Central  Trust  Co.,  425,  2952. 
v.  Cheetham,  2353. 
v.  Citv  of  Athens,  913. 
v.  City   of  Auburn,   3907,    4119. 
v.  City  of  New  York,   2742. 
v.  Clarke,    1894. 
v.  Clews,    2705. 
v.  Coe,    310,    619,    620,    624,    636, 

943,   2663,   2682,    3024. 
v.  College  of  St.  Francis  Xavier, 

48,    1916. 
v.  Collier,   538. 
v.  Colvin,   314S. 
v.  Compton,    46. 
v.  Cooper,   2991. 

v.  Countryman,   1066,   1068,   1092. 
v.  Cowan,    3864. 
v.  Crocheron,  3396,  3781. 
V.Crocker,   51,   132,  1767,   1815. 
v.  Cutler,  110. 
v.  Cutter,    3257,   3286,   3301,    3302, 

3360. 
v.Davis,  44,  1513,  3086,  3257. 
v.  Dederick,    4038. 
v.  Dempsey,    2744. 
v.  Dittenhoefer,    49. 
v.  Dittman,   2729. 
v.  Dodd,    624. 
v.  Douglass,    1086. 
v.  Drury,    340,    3640. 
v.  Duffy,    3041. 
v.  Dunn,  2585. 
v.  Ely,   3860. 
v.  Emigrant       Industrial       Sav. 

Bank,   1863. 
v.  Erwin,  3100. 
v.  Evans,   3694. 
v.  Falconer,  671. 
v.  Felton,    969. 
v.  Ferguson,   63. 
v.  First  Nat.   Bank,   500. 
v.  Fitch,    3408. 
v.  Fleischman,      49,      2151,      2155, 

2937,  3787. 
v.  Floyd,   987. 

v.  Fogarty,    752,    756,    937,    1446. 
v.  Geortner,   65,   75. 
v.  Gilliatt,    2642. 
v.  Gouraud,   882. 

v.  Grant,  618,  621,  630,  1667,  2652. 
v.  Gray,  2311,   2316. 
v.  Green,  2123,   3001. 
v.  Greenin,    1003. 
v.  Griffith,    1765. 
v.  Hall,   1093. 
v.  Hamilton,   472. 
v.  Harrigan,    3234. 
v.  Hart,   197. 
v.  Hill,     1416,     1429,     3127,     3132, 

4019. 
v.  Hilton,    884,    1068. 
v.  Holmes,    957,    2789. 
v.  Homer,    1078. 
v.  Howard,    2175,    2761,    2762. 
v.  Howell,    3081-3083. 
v.  Hudson,   3147. 
v.  Ijams,    490. 
v.  Ing-ersoll-Sergeant  Rock  Drill 

Co.,  2161. 


TABLE  OP  CASES. 


4311 


[references  are  to  pages.] 


Smith    v.    Ingham    University,    2654, 

2659,   3S43. 
v.  Irvin.    4092,    4124,    4128. 
v.Jackson,    799,   804,   2872. 
v.  Johnson,    3347. 
v.  Johnston,   873,   4015. 
v.Jones,    1321,    2937. 
v.  Joyce,  2101. 
v.  Kearney,    3404. 
v.  Keepers,   1674,  1684. 
v.  Kerr,    650,     654,    1993,    1994. 
v.  Keteltas,    88,    738,   739,    2037. 
v.  Kimball,    1326. 
v.  Knapp,   3202. 
v.  Laird,    1025. 
v.  Lapham,  2737. 
v.  Lehigh    Valley     R.     C,     2328, 

3003,   4165. 
v.  Levinus,    921. 
v.  Lewis,    2752. 
v.  Lidgerwood     Mfg.     Co.,     2026, 

2033,  2712,  2729.  2730,  3787. 
v.  Lockwood,  39,  469,  922. 
v.  Longmire,    1411. 
v.  Lynch,   2102. 
v.  McGowan,    3137,    3189. 
v.  Mack,    1934,    1956,    1957. 
v.  McQuade,    338,    3329,   3330. 
v.  Mahon,    765. 
v.  Mahony,   3071,   3254. 
v.  Martin,  3141. 

v.  Matthews,    2347,    2349,    2731. 
v.  May,   4039. 
v.  Mead,   1070. 

v.  Metropolitan  St.  Ry.  Co.,  2285. 
v.  Meyers,  1301. 
v.Miller,    3178. 
v.  Mingay,   2068. 
v.  Moulson,   2388. 
v.  Newell,   2673. 
v.  New   York   Cent.    &   H.    R.    R. 

Co.,  2561. 
v.  New  York  Consolidated  Stage 

Co.,    1634,    1646. 
v.  New  York  Ilns.  Co  ,  2032. 
v.  New  York  &  N.  H.  R.  Co.,  378. 
v.  Norval,    1903. 
v.  Olssen,    1705. 
v.  Orser,    1407. 
v.  Osborn,    2153,    2713. 
v.  Patten,    2955. 
v.  Paul,   3272,    3300. 
v.  Pelott,  2593. 
v.  Pflster,    1024,   1026. 
v.  Prior,    1943. 
v.  Rathbun,      1014,      1042,      2598, 

2777. 
v.  Reeves,   3120. 
v.  Reich,  464. 
v.  Reid,     488,     740,     2040,     2045, 

2756,   3137. 
v.  Reno,  1594. 
v.  Rentz,  114,  2711. 
v.  Roome,   2027,   2029. 
v.  Ryan,  528,  531. 


. .  Savin,  43. 

/.  Seattle,    L.    S. 

577,   1838. 
/.  Secor,  3236. 
/.  Servis,   29«5. 
ir.  Sheldon,  4153. 
7.  Skinner,   2118. 


&    E.    Ry.    Co., 


Smith  v.  Slade,  1421. 
v.  Slosson,  2009. 
v.  Small,    1305. 

v.  Smith,  31,  78,  1033,   2007,  2381, 
2766,    2809,    2812,    3115,    3853, 
3968,  4123. 
v.  Spalding,  617,   642,  1340. 
v.  Spinolla,   1275. 
v.  Stagg,    1034. 
v.  Stephens,    2294. 
v.  Storm,   2881. 
v.  Swenson,    1515. 
v.  Svracuse  &  G.  Ry.  Co.,  1600. 
v.  Thompson,    2700,    2701. 
v.  Town  of  Greenwich,  470. 
v.  Tozer,    3361. 

v.  Trustees   of   Town   of   Brook- 
haven,    2384. 
v.  Union  Milk  Co.,   1448. 
v.  Velie,    527. 
v.  Warringer,    4053. 
v.Wells,  779,  1076,   1623. 
v.  "Weston,    2849. 
v.  Wetmore,   852,  3907. 
v.  White,    47. 
v.  Woodruff,    88. 

v.  Zalinski,  640,  2076,  2079,  2091. 
Smith  Co.,  Matter  of,  1621. 
Smith,     Perkins    &    Co.    v.    Wilson, 

1462. 
Smith's   Estate,   Matter  of,    335,   443. 
Smith's   Will,   Matter   of,    3990,    3991. 
Smith   &   B.    Brass  Works   v.   Kahn, 

1S96. 
Smoot   v.   Heim,   1499. 
Smyth  v.  McCool,   3238. 
Smythe  v.  Graecen,  2774,  4117. 
Snape  v.  Gilbert,   901,   915. 
Sneblv  v.   Conner,   479. 
Snedeker,  Matter  of,   3988. 
Snedeker  v.  Snedeker,  3150. 
Snell  v.  Dale,   524. 
Snelling  v.  Watrous,   737,  1301. 

v.  Yetter,    2718. 
Sniffen  v.  Koechling,  2611,  2335. 
v.  Parker,    1345,    1346. 
v.  Peck,   592,   938. 
Snodgrass  v.   Krenkle,   688. 
Snook  v.   Fries,   2629,    2643. 
Snow  v.  Fourth  Nat.  Bank,   1016. 
v.  Green,    2947. 
v.  Judson,   142. 
Snow,  Church  &  Co.  v.  Snow-Church 

Surety    Co.,    1835,    1848. 
Snowhill  v.  Knapp,   2733. 
Snyder   v.    Bliss,    3714. 
v.  Davis,    1422. 
v.  Goodrich,   815. 
v.  Hughes,  4038. 
v.  Dindsey,  2269,  2370. 
v.  Mack,   1935. 
v.  Olmsted,    538. 
v.  Seeman,  3928. 
v.  Sherman,    3990. 
v.  Snyder,    3860. 
v.Warren,    3164,    3167,    3168. 
v.  White,   1026. 
v.  Young,  2956. 
Societa    Italiana    Di    Beneficenza    v. 

Sulzer,  845,  964. 
Society  for  Reformation  of  Juvenile 
Delinquents  v.  Diers,   1597. 


4312 


TABLE  OF  CASES. 


[REFEKENCES  are  to  pages.] 


Society    of    New    York    Hospital    v. 

Coo.    -21  22. 
Sohor  v.    Fargo,   1051. 
Soldiers'  Home  of  St.  Louis  v.  Sage. 

995. 
Soloman    v.    Belilen,    1697,    1700. 
v.  Bennett,  510. 
v.  McKay,   864. 
v.  Saqui,  3051. 
v.  Waas,    1304,    1306. 
Soltau  v.  Loewenthal,  2329. 
Soltz   v.   Newmark,   2280. 
Somers  v.  Milliken,  2640. 
Somerset  &  Worcester  Sav.  Bank  v. 

Huyck,   673,   1360. 
Sommer    v.    New    York    El.    R.    Co., 
2146,   2147. 
v.  Oppenheim,  2335,  2337,  2338. 
v.  Sommer,  2378,  2771,  3859. 
Soop,  Matter  of,   3647. 
Sooysmith  &  Co.  v.  American  Surety 

Co.,    687,    1512. 
Soper   v.    St.    Regis    Paper   Co.,    943, 

4127. 
Sopher  v.  Sargent,  2348. 
Soria  v.   Davidson,   2322. 
Sortore  v.  Scott,   72. 
Sorzano  v.   Coudert,  1407. 
Soule,  Matter  of,  3975. 
Soule  v.   Chase,   539,    651. 

v.  Oosterhoudt,   2710,  2714. 
Souls  v.  Cornell,   1407. 
Southack  v.   Central  Trust  Co.,    621, 
2157. 
v.  Southack,    621. 
Southard  v.  Becker.  4023. 
v.  Benner,    3432. 
v.  Franco-American    Trading 

Co.,  2644. 
v.  Philips,    4003. 
v.  Rexford,   2234. 
Southern   Boulevard   R.    Co.,    Matter 

of,   3614,  3616. 
Southern  Inland  Nav.   &  Imp.  Co.  v. 

Sherwin,   1274,   1348. 
South  Market  St.,  Matter  of,  3642. 
South     Market     St.     in     Village     of 

Johnstown,  Matter  of,  15. 
Southmayd  v.  Jackson,   10S2. 
South  Pub.  Co.  v.  Fire  Ass'n  of  Phil- 
adelphia,  747. 
Southwark     Nat.     Bank     v.     Childs 

1861. 
Southwell   v.   Kingsland,    1390,    1443. 
Southwick    v.    Nat.    Bank    of    Mem- 
phis,   83,    1029,    1037,    2283. 
v.  Moore,    1633. 
Southworth   v.    Bennett,    1086. 

v.  Scofleld,    3148. 
Soutter   v.   Mather,   896. 
Spafard  v.  Hogan,   339. 
Spalding  v.   Spalding,  611. 
Spang  v.  Patterson,  1329. 
Spangehl    v.    Spangehl,     2027,     2028, 

2032. 
Sparks  v.  United  Traction  Co.,  1935. 

v.  Wakeley,    2701. 
Sparling  v.  Levy,  3278. 
Sparman  v.  Keim,   30. 
Sparmann  v.   Keim,   93,   2960. 
Sparrowhawk       v.        Sparrowhawk, 
2972. 


Spaulding  v.  American  Wood-Board 
Co.,   1912,   1913,   1921,  1942. 

v.  Hallenbeck,    2275. 

V.Lyon,    786,    2831,    3065,    3188. 

v.  Strang,    2390. 

v.  Village  of  Waverly,   2940. 
Spear  v.   Cutter,   1598. 

v.  Downing,   855,   904,    924. 

v.  Myers,  2235. 
Speare   v.   Troy  Laundry  Mach.   Co., 

363,   1931. 
Spears  v.  City  of  New  York,  1052. 

v.  Mathews,    1570. 
Speiglemyer  v.  Crawford,  3393. 
Spellman  v.  Welder,   10S6. 
Spelman  v.   Freedman,    3433,   3434. 

v.  Terry,    16. 
Spence  v.   Baldwin,   1277. 

v.  Simis,   2560,   2564,   2566. 
Spencer    v.    Barber,    630. 

v.  Berdell,   3366. 

v.  Cuyler,    3278,    3279. 

v.  Fort  Orange  Paper  Co.,  55S 

v.  Humiston,  2337. 

v.  Huntington,   3717. 

v.  Rogers     Locomotive     Works, 
1504,  1518. 

v.  Sampson,    2055. 

v.  Spencer,    2928. 

v.  Wabash  R.  Co.,  407,  828. 

v.  Wheelock,    411. 
Sperling  v.  Boll,   3606. 

v.  Levy,  784. 
Spero  v.  Levy,  4044. 

v.  Supreme    Council,    A.    L.    H., 
4138. 
Sperry  v.  Hellman,   1329,  2275,   3612, 
3665. 

v.  Miller,    2349. 

v.  Willard,    1308. 
Speyer   v.    Stern,    224S.    2257. 
Spicer   v.   Hunter,   3415. 
Spiegel  v.  Hays,  2246. 
Spier  v.  Hyde,  4111. 

v.  Robinson,    60,    76. 
Spies,  In  re,   1634,   1635,  4136. 
Spies  v.  Joel,  1289. 

v.  Lockwood,    1029,    3881. 

v.  Michelsen,   1083,  2669. 

v.  Monroe,  825,   830,   3626. 

v.  National  City  Bank,  3876. 
Spindler  v.   Gibson,   3844. 
Spink  v.  Co.-Operative  Fire  Ins.  Co., 

3903. 
Spinner  v.    Klinger,    2343. 
Spinney  v.  Fields,  1748. 
Spitz   v.   Heinze,    4094,    4096. 
Spofford  v.  Pearsall,   2808. 

v.  Rowan,  975,   3704. 
Sponenburgh  v.  City  of  Gloversville, 

3226. 
Spooner    v.    Brooklyn    City    R.    Co., 
2281. 

v.  Delaware,  L.  &  W.  R.  Co.,  92, 
797,    957,    1090. 

v.  Keeler,    962. 

v.  Lefevre,    2623. 
Spoor  v.   Cornell,   724. 

v.  Holland,    3121. 
Spoore   v.   Fannan,    3850. 
Sporessig  v.   Keutel,   2280. 
Spotten  v.   Keeler,   2326. 


TABLE  OF  CASES. 


4313 


[references  are  to  pages.] 


Sprague  v.  Bartholdi  Hotel  Co.,  1913. 

v.  Dunton,   3628,    3633. 

v.  Gibson,    2338. 

v.  Irwin,  722,  724,   815. 

v.  Parsons,    829,    1543,    1547. 

v.  Richards,    3951,    3957. 

v.  Sprague,  946. 
Sprague   Nat.    Bank  v.    Erie   R.    Co., 

131. 
Spraker  v.  Cook,   3151,  3172. 
Spratt  v.   Huntington,   581. 
Spring  v.  Baker,  4013. 

v.  Bowne,  2766. 

v.  Chautauqua   Mut.    Life    Ass'n, 
2666. 

v.  Day,   2970,   2986. 

v.  Gourlay,  575,   1347. 

v.  Sandford,    3233. 

v.  Short,    2807,    3408,    3432,    3434. 
Springsted  v.  Robinson,  890. 
Springsteed  v.   Lawson,   2334. 
Springsteen  v.  Powers,  591,  1560. 
Sprogg  v.  Dichman,   3415. 
Sprong   v.    Snyder,    3013. 
Sproul  v.  Resolute  F.   Ins.  Co  ,   2732. 
Sproule  v.  Davies,  3220,  3234. 
Sproull   v.    Star   Co.,    606,    2627.    2634, 

2638,  2642. 
Spuyten    Duvvil    Rolling    Mill    Co., 

v.    Williams,    1047. 
Squier    v.    Hanover    Fire    Ins.     Co , 

2248. 
Squires   v.    Thompson.    2764. 
Squire  v.  McDonald,   277,   1330,   3847. 

v.  Senia,    1330. 

v.Young,  3345. 
Squire's  Case,  1313. 
Squires   v.   Abbott,    2238. 

v.  Sew'ard,    2911,    2912. 
Staake    v.    Preble,    2725. 
Staats,  Ex  parte,   285. 
Staats  v.  Bristow,   1407. 

v.Hudson   River   R.   Co.,    4023. 

v.  Wemple,  3362. 
Stacom  v.  Moon,  361. 
Stacv  v.    Farnham,   536 

v.  Graham,    80,    1769,    2227,    2256, 
2257. 
Stafford,  Matter  of,   2658,  4131,   4178. 
Stafford    v.    Ambs.    1269.    2581. 

v.  Azbell,   30. 

v.  Bryan,    521. 

v.  Cole,    660,    661. 

v.  Leamv,   2601. 

v.  Merrill,    3410. 

v.  Richardson,     443,     491. 

v.Williams,    3161,    3181. 
Stage  v.  Stevens,   1288. 
Stahl  v.  Charles,  3228. 

v.  Wadsworth,   298. 
Staiger  v.  Schultz,  2116. 
Stalker  v.  Gaunt,   1827,   18J1,  1843. 
Stallman  v.  Kimberly,   3006. 
Standard     Fashion     Co.     v.     Siegel- 

Cooper  Co.,  2568,  2571. 
Standard  Oil  Co.  v.  Amazon  Ins.  Co., 

2342,  2344,   2695. 
Standard  Sugar  Refinery  v.  Dayton, 

1286,  1287,  1291. 
Standard    Trust    Co.    v.    New    York 
Cent.   &   H.    R.    R.    Co.,    3002,    3003, 
3025,  3873. 


Standart  v.  Burtis,   1000. 
Stanlev  v.  Chappell,  92,  923. 

v.  Lovett,  3344. 

v.  National    Union    Bank,     1636, 
3359. 
Stannard  v.  Hubbell,  2808. 

v.  Mattice,  893. 
Stanswood  v.  Benson,  2974. 
Stanton   v.    Delaware  Mut.   Ins.   Co., 
1826. 

v.  Friedman,    1843. 

v.  Gohler,  3720. 

v.  King,   1026,  3857,  3900,   3948. 

v.  Missouri  Pacific  Railway  Co., 
77. 

v.  Schell,  224. 

v.  Town  of  Taylor,   2940. 

v.  United    States   Pipe   Line   Co., 
552    558. 
Staples  v.  Fairchild,  536,   544,   545. 

v.  Gokey,    3776,    3779. 

V.Goodrich,  53,  55. 
Stapleton's  Will,  Matter  of,  3976. 
Starbuck  v.  Murray,  2S44. 

v.  Starbuck,  2384. 
Starer  v.  Stern,  3865. 
Star  Fire  Ins.  Co.  v.  Godet,  624. 
Starin  v.  City  of  New  York,  259. 

v.  Kelly,  2336. 

v.  Simmons,   1340. 
Staring  v.  Bowen,  2224,  2688. 

v.  Jones,  3689. 
Stark  v.  Stark,  1522,  1995. 
Starke  v.  Myers,  983,  2009. 
Starks  v.  Bates,   353. 

v.  People,  2247,  2255. 
Starkweather  v.   Carswell,   2174. 

v.  Kittle,   861,   2559. 
Starr  v.  Benedict,  3829. 

v.  Francis,   1924. 

v.  Griswold,  1078. 

v.  Kent,  1306. 

v.  Rathbone,  3424. 
State  Bank  v.  Spence,  1664. 
State  Bank  of  Lock  Haven  v.  Smith, 

2998. 
State  Bank  of  Olean  v.  Shaw,   1002. 
State  Bank  of  Syracuse  v.  Gill,   562, 

1624,  1629,  3352,  3357. 
State   of   South   Dakota   v.    McChes- 

ney,  943,  959. 
Staten     Island    Electric    R.     Co.     v. 

King,   1558. 
Staten     Island    Midland     R.     Co.     v. 

Hinchcliffe,    943,   1003. 
States  v.  Cromwell,   3795 
Staub  v.  Henry,  1279,  1342. 

v.  Myers,  1279,  1281,  1342. 
Staunton  v.  Swann,  1052,  1059. 
Steamship  Circassian.  Matter  of,  139. 
Steamship  Richmond  Hill  Co.  v.  Sea- 

ger,  728,  2852,  3199,   3206,  3723. 
Stearns  v.  Eaton,  3333. 

v.  Field,  2241. 

v.  Lichtenstein,  996,  1060. 

v.  Shopard  &  Morse  Lumber  Co., 
3714. 

v.  Sherman,  1593. 
Stebbins  v.  Brown,  2632. 

v.  Cowles,  196,  2564,  3646. 

v.  Grant,  1913. 

v.  Harmon,  1835. 


4314 


TABLE  OF  CASES. 


[REFERENCES   ARE   TO   PAGES.] 


Stebbins     v.     Methodist     Episcopal 

Church,  2SS3. 
Steck  v.   Colorado   Fuel  &  Iron   Co., 

■'  583 
Stedeker  v.  Bernard,  893,  1039,  1075, 
1708,  1709,  2760,   3662. 
v.  Taft,   892. 
Stedman    v.    Batchelor,    219S,     2201, 

2703. 
Stedwell  v.  Hartmann,  266. 
Steele  v.  Connecticut  Gen.  Life  Ins. 
Co.,  50. 
v.  Hutton,   2037. 
v.  Macdonald,  2916. 
v.  Pittsburgh,  S.  &  L.  E.  R.  Co., 

1563,  1596. 
v.  Raphael,  1446. 
v.  Sturges,  1635. 
v.  Wells,  2211,  4019. 
Steenberge  v.  Low,  3367,  4178. 
Steenburgh  v.  Miller,  275. 
Steencken,  Matter  of,  2093. 
Steer  v.  Steer,  1727. 
Steere  v.  Miller,   1982,  2981. 
Steffln  v.  Steffln,  3121,  3390 
Stegman  v.  Hollingsworth,  3872. 
Steiffel  v.  Tolhurst,  1067,  1069. 
Steiger  v.  Bonn,  737. 
Steigerwald    v.    Manhattan    R.    Co., 

3870. 
Steiglitz  v.  Belding,  1003. 
Stein  v.  Kesselgrub,  3855. 
v.  Levy,  1401,  1520,  1607. 
v  New     York     News    Pub.     Co., 
2564. 
Steinam  v.  Strauss,  809,  2756. 
Steinan  v.  Scheuer,  2301. 
Steinau,  Matter  of,  3082. 
Steinau  v.  Metropolitan  St.  Ry.  Co., 
867. 
v.  Scheuer,  2721. 
Steinbach     v.     Columbian     Ins.     Co., 
2192,   2713.  na^ 

v  La  Fayette  Fire  Ins.  Co.,  2291. 
v.  Prudential  Ins.  Co.,  1091,  3916, 
4122. 
Steinback  v.  Diefenbrock,  951,   3739, 

3747. 
Steinberg  v.  Lasker,   1280. 
v.  Manhattan  Ry.  Co.,  93. 
v.  O'Conner,  1563. 
v.  Rosenthal,  1877. 
v.  Tyler,  827. 
Steinboc'k  v.   Evans,   683,   1368,   1373. 
Steiner  v.  Ainsworth,  2965. 

v.  East  River  Sav.  Inst.,  1867. 
Steinert,  Matter  of,   287,  1594. 
Steinfeld  v.  Levy,  2746. 

v  National      Shirt      Waist     Co., 
4135. 
Steingoetter  v.  Board  Canvassers  ot 

Erie  County,  423. 
Steinhardt    v.    Baker,    753,    756,    786, 
792. 
v.  Beer,' 1326. 
v.  Michalda,  3257. 
Steinhart  v.  Farrell,  3322. 

v.  Gross,   2321. 
Steinhhaus    v.    Enterprise    Vending 

Mach.  Co.,  799,  4090. 
Stfinhouser  v.  Mason,  2088. 
Steinle  v.  Bell,  652,   697,   766,  791 

v.  Metropolitan  St.  Ry.  Co.,  2284. 


Cosmopolitan    Range 


Steinmetz 

Co.,   4111. 
Steinway,  Matter  of,   153. 
Steinway  v.   Steinway,   988,  989. 

v.  Von  Bernuth,  158. 
Stelle  v.  Palmer,  1322,  2570,   2860. 
Stemmerman  v.  Nassau  Elec.  R.  Co., 

3905. 
Stemmler  v.  City  of  New  York,  1040, 

1045. 
Stent  v.  Continental  Nat.  Bank,  952. 
Stephan  v.  Hughes,  2601. 
Stephani's    Estate,    Matter    of,    267, 

N '  \X 

Stephen   v.   Woodruff,   2066,   2069. 
Stephens  v.  Baird,  3130,  3132,  3144. 
v.  Flammer,  3235. 
v.  Fox,  2227. 
v.  Hall,   706,    1037,    2761. 
v.  Humphreys,    265,     3232,    3235, 

3751. 
v.  Humphryes,   2095,   2150. 
v.  Meriden    Britannia    Co.,    3262, 

3370-3372. 
v.  Perrine,  3371. 
v.  Strong,  2589,  2590. 
v.  Wider,   2688. 
Stephenson  v.  Clark,  2958. 

v.  Hanson,    680,    1330,    18S7. 
Sterett  v.   Denver   &   R.  G.   Ry.   Co., 

749. 
Sterling    v.    Metropolitan    Life    Ins. 

Co,    990,    1093. 
Stern   v.   Doheny,   1028. 
v.  Frommer,    2280. 
v.  Knapp,   706,   1038. 
v.  Ladew,   840. 
v.  Mayer,    4055,    4156. 
v.  Newberger,  3983. 
v.  Schlesinger,  1303. 
Sternback    v.    Friedman,    954,    3741, 

3759. 
Sternberger    v.    Bernheimer,    2769. 

v.  McGovern,  928. 
Sterne   v.    Bentley,    1993. 
v.  Herman,  61,  76. 
v.  Metropolitan       Telephone      & 

Telegraph   Co.,    1812. 
v.  Talbott,    974,   3776. 
Sternhaus  v.   Schmidt,   3763. 
Sterns  v.  Goep,  241. 
Sterns  Paper  Co.  v.  Johnson,  1519. 
Sterrett    v.    Third   Nat.    Bank,    1411, 

1509. 
Stetson  v.  Hopper,  3384,  3391. 
Steuben   County    Bank    v.    Alberger, 
640,    1434,    1441,    1522,    1525,    1527, 
2888. 
Steubing   v.    New    York    El.    R.    Co., 

2618. 
Steven  v.  Lord,   526. 
Stevens,  Ex  parte,  3160,  3163,  3164. 

Stevens  v.  Benton,  4032.  

v.  Buffalo  &  N.  Y.  C.  R.  Co.,  3106. 
v  Central  Nat.  Bank,  3612,  3963. 
v  City   of   New   York,    837,   1034, 

2141,  2765. 
v  Corn  Exch.  Bank,  2690. 
v.  Dewey,    3306. 
v.  Glover,   3651. 
v.  Hyde,    2293. 
v.  Lockwood,   54. 
v.  Middleton,    1432,    1433,    1445. 


TABLE  OF  CASES. 


4315 


[references  are  to  pages.] 


Stevens  v.  O'Neill,  3810. 

v.  Orton,   973,   992. 

v.  Page,  3259. 

v.  Reed,  495. 

v.  Rhinelander,  2230. 

v.  Rodger,   2255. 

v.  Rowe,  3187. 

v.  Schroeder,    3887. 

v.  Smith,  874. 

v.  Sonto,  2364. 

v.  Veriane,  1990. 

v.  Webb,    869,    878. 

v.Weiss,    2599. 
Stevenson  v.   Fayerweather,   1598. 

v.  Gregory,  2633. 

v.  McNitt,  3846. 

v.  New  York.  L.  E.  &  W.  R.  Co., 
1896. 

v.  New  York  Life  Ins.  Co.,   1865. 

v.  Stevenson,  3365. 
Stever   v.   New  York   Cent.   &  H.    R. 
R.   Co.,   2269. 

v.  Somberger,    1365. 

v.  Sornberger,    1365. 
Steward,    Matter    of,    493. 
Steward  v.  Cole,  3372. 

v.  Lamoreaux,  2904. 
Stewart,  Matter  of,  2643,   3299,   3977, 

3980 
Stewart  v.  Beebe,  924. 

v.  Berge,   622,  3849. 

v.  Brown,    1416,    1417. 

v.  Butler,    1912,   1916. 

v.  Doughty,  3106. 

V.  Ellice,    2904. 

v.  Elwele,  2560. 

v.  Fidelitv  Loan  Ass'n,  2296. 

v.  Forst,   1069. 

v.  Green,  3941. 

v.  Hamilton,  2211. 

v.  Hilton,   267. 

v.  Howard,    732,   816,   1354. 

v.  Huntington,    844. 

v.  Isidor,  1054. 

v.  Lyman,   1462,   1519. 

v.  McGuin,   1365. 

v.  McMartin,    2874,    3405. 

v.  Metropolitan  St.  Ry.  Co  ,  2308. 

v.  Russell,   1750. 

v.  Schultz,  2941,  2992,  2993. 

v.  Slater,  2383. 

v.  Steck,    279. 

v.  Stewart,   267,   274. 

v.  Strasburger,  1304. 

v.  Wells,    3194. 
Stewart's  Estates,   501. 
Stiasny    v.    Metropolitan    St.    R.    Co., 

2652. 
Stibbard  v.  Jay,   1068. 
Stiehter  v.  Tillinghast,  1837,  1848. 
Stief  v.  Hart,  3130. 
Stiefel    v.     Berlin,     958,     3359,     3374, 
3416. 

v.  New   York  Novelty   Co.,    1082, 
1648. 
Stierle  v.  Union  R.  Co.  3686. 
Stiles  v.  Fisher,  2936. 
Still  v.  Holbrook,  473. 
Stilwell,  Matter  of,   160. 
Stilwell  v.  Archer,  2203. 

V.Armstrong,  302,  3840. 

v.  Hernandez,    865. 

v.  Kelly,  1022. 


Stilwell  v.  Priest,  1829,  1843. 

v.  Staples,    2915,    3126,    3146. 

v.  Stilwell,   1996,   2820. 

v.  "Van  Epps,  3393. 
Stimmel  v.  Swan,  1369. 
Stimson  v.  Huggins,   2781,   2786. 

v.  Stimson,   1946,   1960. 

v.  Wrigley,  3132. 
Stine  v.   Greene,   1501,  1502,   3872. 
Stinerville  &  B.  Stone  Co.  v.  White, 

271,   2811. 
Stirn  v.  Hoffman  House  Co.,   2300. 
Stivers  v.   Ritt,   3716. 
Stock  v.   Le  Boutillier,   2223,   2275. 
Stockbridge  Iron  Co.  v.  Mellen,  837. 
Stockton  v.   Kennev,   1072. 
Stockwell  v.  National  Bank  of  Ma- 
lone,  1423. 

v.  Wager,  998. 
Stoddard  v.  Bell  &  Co.,   4051. 

v.  Clarke,   2913. 

v.  Delaware     &     H.     Canal     Co., 
1938,    1939. 

v.  Long  Island  R.  Co.,  117. 

v.  Onondaga  Annual  Conference 
of       Methodist       Protestant 
Church,   954. 
Stodder  v.  New  York.  L.  E.  &  W.  R. 

Co.,   2247. 
Stoiber  v.   Thudium,   1434. 
Stokes  v.  Amerman,  3407,  3411. 

v.  Behrenes,  1085. 

v.  Hagar,  1073. 

v.  Hoffman  House,   1645,    3240. 

v.  Hyde,   3872. 

v.  Johnson,   2320. 

v.  Mackay,   2011,   2300. 

v.  Manhattan   R.   Co.,   1057,   2074. 

v.  Morning    Journal    Ass'n,    855, 
2318 

v.  Schildknecht,    4090,    4101. 

v.  Star  Co.,  1067. 

v.  Stickney,  2067. 

v.  Stokes,   1707,   2744,   2767,   2905, 
3668,  3718. 
Stoll  v.  King,   1285. 
Stolp  v.  Van   Cortland,   4013. 
Stone,  Ex  parte,   1914. 
Stone  v.  Groton  Bridge  &  Mfg.  Co., 
1081. 

v.  Hudson  Valley  R.  Co.,   4093. 

v.  Knowlton.  2283. 

v.  Miller,   136. 

V.Pratt,  1382,  1461,  1464. 

v.  Smith,  3172. 

v.  Williams,  2885. 

v.  Woods,    2993. 
Stone  Cleaning  &  Pointing  Union  v. 

Russell,   1565. 
Stonebridge  v.  Perkins,  3115,  3130. 
Stono  v.  Weiller,  2151. 
Stoors  v.  Kelsey,  3278,  3399. 
Storm   v.    Badger,    3396. 

v.  Waddell,  3418,   3420. 
Storrs   v.    Congregational    Church   & 
Soc.   of  Wilmington,   2291. 

v.  Flint,  3907. 

v.  Plumb,   1920. 
Story  v.   Arthur,    1390,    1442,    1517. 

v.  Brown,  2605,  2608. 

v.  Dayton,   2043. 

v.  Elliot,  103,  105. 

v.  Richardson,  4110,  4130. 


DUt; 


TABLE  OF  CASES. 


f REFERENCES    ARE   TO   PAGES.] 


Story  V.  Satterlcc,  266. 
Stoughton  v.  Lewis,   3S46. 
Stout  v.  Betts,  3983. 
Stoutenburgh  v.  Vandenburgh,  1407, 

3101. 
Stouter  v.  Manhattan  Ry.  Co.,  2276. 
Stover  v.   Chasse,    2009. 
Stow  v.  Betts,   1854. 
V.  Chapin,    3403. 
v.  Stacy,  765,  2858. 
Stowe  v.  White,  2129. 
Stow  its  v.   Bank  of  Troy,   878. 
Strang  v.  Cook,  488. 
Strange  v.  Longley,  3397,  3412,  3415, 

3424. 
Stransky  v.  Harris,  1058,  1367. 
Strasburger,  Matter  of.  2  680. 
Strasser   v.   Moonelis,    1559,    1596. 
Stratton  v.  City  Trust,  Safe  Deposit 

&  Surety  Co.,  1029,   4136. 
Straus      v.      American      Publishers' 
Ass'n,  4055,  4109,  4115,  4126. 
v.  Buchman,   4119. 
v.  Chicago    Glycerine    Co.,    1410. 
v.  Hoadley,   412. 
v.  Kreis,  1315. 
v.  Schwarzwaelden,   1280. 
Strause  v.  Josephthal,   2224. 
Strauss,    Matter    of,    1772. 
Strauss  v.  Benheim,  2810,  3235. 
v.  Edelstein,    992. 
v.  Parker,  915. 
v.  Trotter,   925,   944. 
v.  Union   Cent.   L.   Ins.   Co.,  3006, 

3018. 
v.  Vogt,  1400,  1513,  1527. 
Strawbridge   v.   Vandenburgh,    4020. 
Strawn    v.    Edward    J.    Brandt-Dent 

Co.,   3903. 
Streat  v.  Rothschild,  2568. 
Strebell  v.   J.   H.    Purber  Co..    S6  6. 
Streep  v.   McLoughlen,   3648,   3944. 
Stretter  v.  Fisher,  3096. 
Strickland  v.  Hueger,  1920. 

v.  National   Salt  Co.,   4134. 
Striker  v.  Kelly,  222. 

v.  Mott,   3995. 
Stringham  v.  Stewart,  248,  673,  2103. 
Strohn  v.  Epstein,   3348. 
Strong,  Matter  of,  3614,  3615,  4044. 
Strong  v.  Blake,   2011. 

v.  Citv   of  Brooklyn,   3191. 
v.  Dollner,  3245. 
v.  Dwight,  1031. 

v.  Hardenburgh,  2658,  2659,  3786. 
v.  Harris,    158. 
v.  Jenkins,    92. 
v.  Place,  2601. 
v.  Platner,   576. 
v.  Spittlehouse,  772. 
v.  Sproul,   1070. 

v.  Strong,  597,  1021,  1840,  1846. 
v.  Taylor,  3107. 
v.  Walton,  2287,  4022. 
v.  Wheaton,  410,  411,  998. 
Stroub  v.  Henly,   1294. 
Strough  v.  Board  Sup'rs  of  Jefferson 

County,  489. 
Struffman  v.  Muller,  3785. 
Strumwald  v.  Schreiber,  2255. 
Struthers  v.  Christal.  2901. 

v.  Pearce,  3012. 
Struver  v.  Ocean  Ins.  Co.,  994,   1086, 
3725. 


Stryker  v.  Churchill,  4082. 

v.  New  York  Exch.  Bank,  1024. 
v.  Storm,  3227,  3232. 
v.  Turnbull,    2059. 
Stuart  v.  Atlantic  Dredging  Co.,  976. 
v.  Binsse,  2660. 
v.  Foster,   522. 
v.  Mechanics'  &  Farmers'  Bank, 

229. 
v.  New  York  Herald  Co.,  1030. 
v.  Press  Pub.  Co.,  2697. 
Stubbs  v.  Ripley,  324,  339,  1589,  1603, 
2578,    2579,    2606,    2607,    3958. 
v.  Stubbs,   3688,   3725. 
Stuber  v.  McEntee,   948. 

v.  Schuartz,  1347. 
Studwell  v.  Baxter,  2967,  2968. 

v.  Charter    Oak    Ins.    Co..     1678, 

1682. 
v.  Palmer,   630. 
Stull   v.   Westfall.    1575. 
Stumpf  v.  Hallahan,   4161. 
Sturges   v.   Crescent  Jute  Mfg.   Co., 
744. 
v.  Parkhurst,   461. 
v.  Vanderbilt,    2075. 
Sturgess  v.  Weed.  1736. 
Sturgis  v.  Law,   140. 

v.  New   Jersey    Steam   Nav.    Co., 

913 
v.  Spofford,  1998,  2902,  3942,  3962. 
Sturm    v.    Atlantic    Mut.    Insurance 
Co.,    1727,    1765,    1815,    2166,    2238, 
2265. 
Sturmwald   v.    Schreiber,    2254. 
Sturtevant'v.  Brewer,  420,  422,  423. 

v.  Waterbury,  28. 
Sturz  v.   Fischer,  1451,  1462. 

v.  Fisher,    1084. 
Stuyvesant  v.  Davies,  3044. 

v.Weil,    716,    796. 
Suarez  v.  Manhattan  R.  Co..  2614. 
Sudani  v.   Swart,    259S. 
Sudlow  v.  Knox.  15. 

v.  Warshing,  2219,  2348. 
Sugarman  v.  Brengel,  2333. 
Sugden   v.   Magnolia  Metal  Co.,   972, 

981,  3903. 
Suiter  v.  Kent,  4014. 
Sullivan,  Matter  of,  549,  576,  3978. 
Sullivan  v.  Dahlman,  2707. 
v.  Frazee,  812. 
v.  Judah,    1588,    1589. 
v.  McManus,    2336. 
v.  Metropolitan  St.   R.   Co.,   2297, 

3928. 
v.Miller,'  1651,  3435. 
v.  New    York    El.    R.    Co..    2091, 

2099,   3872. 
v.  New  York.  N.  H.  &  H.  R.  Co., 

64,  70. 
v.  New   York   &   R.    Cement   Co., 

407,   998. 
v.  Remington  Sewing  Mach.  Co., 

1893. 
v.  Spring    Garden    Ins.    Co..    854. 
Sulzbacher    v.    J.    Cawthra    &    Co., 
1030,  1463,  1515. 
v.  National      Shoe      &      Leather 
Bank,   1860. 
Sumner  v.  Hosford,  1782,  1808. 
Sunney  v.   Roach,   2117,   2118. 
Sun  Printing  &  Pub.  Ass'n  v.  Abbey 
Effervescent  Salt  Co.,   3670. 


TABLE  OF  CASES. 


4317 


[BEFEBENCES   ABE   TO   PAGES.] 


Superintendent   of   Poor,    Matter   of, 

1984. 
Supervisors  of  Onondaga  v.  Briggs, 

2904. 
Supervisors  of  Saratoga  v.  Seabury, 

1012. 
Supervisors   of   Town   of   Galway  v. 

Stimson,  921. 
Supplee  v.  Sayre,  2954,  2956. 
Surkin    v.    Interborough    St.    R.    Co., 

4167. 
Susnian  v.  Dangler,  4156. 
Sussman  v.  Mason,   908. 
Sutcliffe,  Matter   of,   2816. 
Sutherland  v.  Mead,  2874,  4084. 

v.  Rose,  2089. 

v.  St.   Lawrence  County,   4162. 

v.  Tyler,   2966. 
Sutorius  v.  Dunstan,   1327,   1329. 

v.  North,    1329. 
Sutphen  v.  Lash,  2968,  2970. 
Sutter    v.    City    of    New    York,    4145, 

4173. 
Sutton  v.  Corning,  2265. 

v.  De  Camp,  1286. 

v.  Newton,  2959. 

v.  Sabey,  1343. 
Suydam  v.  Barber,  957. 

v.  Holden,    656,    3086. 

v.  McCoon,   3093. 
Swain  v.  Pettengill,  1796. 
Swan  v.  Keough,  2302. 

v.  Mutual     Reserve     Fund     Life 
Ass'n,    1012,    2777. 

v.  Saddlemire,  3065,  3094,  3192. 

v.  Stiles,  3003. 

v.  Swan,   4093,    4096. 
Swart  v.  Borst,  47,  2848. 

v.  Boughton,   1001,   2764. 

v.  Central  Trust  Co.,   2023. 

v.  Oakley,    3418,    3419. 

v.  Rickard,   2740. 
Swartout  v.  Schwerter,  3365. 

v.  Willingham,    2343,    269S,    2719. 
Swartwout  v.  Hoage,  562. 

v.  Payne,  1947. 
Sweeney,  Matter  of,    4063. 
Sweeney     v.     O'Dwyer,     4083,     4101, 

4102. 
Sweeny  v.  Kellogg.  2788. 
Sweet  v.  Barney,  386. 

v.  City  of  Syracuse,  3925. 

v.Green,   3149. 

v.  Henry,  3861. 

v.  Ingerson,    67,    69,   72. 

v.  Metropolitan   St.   R.  Co.,   2876. 

v.  Mowry,   1608,   1614,   3925,   3965. 

v.  Palmer,  3211. 

v.  Sanderson  Bros.  Steel  Co.,  882. 

v.  Tuttle,    956,    964. 
Sweetland   v.   Buell,   462,    3067. 
Sweetser  v.  Smith,   1581,   1931. 
Sweetzer  v.  Smith.  2120. 
Sweney  v.    Stur^is,   1779,   1782,   1786. 

v.  White,    lSTr,. 
Swezey,  Matter  of,  3805. 
Swezey  v.  Bartlett,  702.  1449,  1518. 
Swift  v.   De  Witt.   3068. 

v.  Hart,   305,   3434. 

v.  Kingsley,  912. 

v.  Pacific    Mail    Steamship     Co., 
386. 

v.  Swift,    498. 


Swift  v.  Tross,  811. 

v.  Wells,    2559.    2560. 
v.  Wheeler,   1899. 
Swinburne  v.  Stockwell,  943. 
Switzer  v.  Norton,  2296. 
Swords    v.    Northern    Light   Oil    Co., 

1012. 
Symonds  v.   Craw,   30S6. 
Syms  v.  City  of  New  York,  494,  3944. 
Symson     v.     Selheimer,     1044,     1046, 

2808,   2814,   2886. 
Syracuse  City  Bank  v.  Coville,  1390. 
Syracuse    Moulding    Co.    v.    Squires, 

891. 
Syracuse   Sav.   Bank  v.   Burton,   762. 
v.  Hess,   1644,   1655. 
v.  Syracuse,    C.    &   N.    Y.    R.   Co., 
165. 
Syracuse  Solar  Salt  Co.  v.  Rome,  W. 

&  O.  R.  Co.,   21,  2381. 
Syracuse  &  O.   L.   Electric  R.   Co.  v. 
Syracuse    Rapid    Transit    Ry.    Co., 
1562. 


T. 


Taacks  v.   Schmidt,   1467. 

Taaks   v.    Schmidt,    1608,    2642,    2981, 

2983,   2992,   3029,    3030. 
Taber  v.   Gardner,    890. 

v.  New  York  El.  R.  Co.,  2235. 
Tabor  v.  Brundage,   3228. 

v.  Bunnell,    3412. 

v.  Tabor,    2128,    2132. 
Taddiken  v.  Cantrell,   1386. 
Taft  v.  Hoppin,   1309. 

v.  Little,    2664,    3866,    4159. 

v.  Marsily,  3739,  3755,  3759,  3780. 
Taggart  v.  Rogers,  740. 
Tailor  v.   Spaulding.    942. 
Taintor  v.  Charles  Beseler  Co.,  1437. 
Talbot  v.  Chamberlin,  3138. 

v.  Doran  &  Wright  Co..  1801. 

v.  Rechlin,  519. 
Talcott   v.   American   Credit   Indem- 
nity  Co.,    1448. 

v.  Burnstine,   605,    639. 
.  v.  City  of  Buffalo,   S30,   1012. 

v.  Rosenberg,   203,   721,  1293. 

v.Wabash    R.     Co,     3034,     3901, 
4176. 
Tallmadge   v.   Lounsburv,    891,    2626. 

v.  Press  Pub.  Co.,  868,  2205,  2302. 
Tallman  v.  Bernhard.  2777,  2934. 

v.  Gashweiler,    1547. 

v.  Hinman,    715,    3630. 

v.  Hollister,  429. 

v.  Kimball,    2259. 

v.  Whitney,    1346. 
Talmadge   v.   Sanitary   Security  Co., 

873. 
Talmage,  Matter  of,  2634,  2642,  3614, 

3617. 
Talmagp  v.  Russell,  489. 

v.  Third  Nat.  Bank,  364. 
Talman  v.  Barnes,  666. 

v.  Rochester  Citv  Bank,  826,  828. 
Tarns  v.  Witmark,  828. 
Tamsen,   Matter   of,    3050. 
Tanenbaum  v.   Hilborn,   1784. 

v.  Lindheim,    1779,    1801. 

v.  I.ippmann,   1777,  1780. 

v.  Simon,  37,  38. 


4318 


TABLE  OF  CASES. 


[befebences  are  to  pages.] 


Tanenbaum  v.  Whiffen,  1799. 
Tannenbaum     v.     Christalar,     1356, 
1371. 

V.  Gottlieb,   1400. 

v.  Etosswog,  1496. 
Tanzheim    v.    Brooklyn,    I.    C.    &    S. 

R.  Co.,  40S1,  40S3. 
Tappan,   Matter   of,    2232. 
Tapscott   v.    Knowlton,    2562. 
Tarbell  v.  Griggs,   3394. 
Tauton  v.  Groh,  1S67,  1868,  3952. 
Tautphoeus  v.  Harbor  &  S.   Bldg.  & 
Sav.    Ass'n,    2850,    2851,    4102,    4130, 
4138. 
Taxpayers  &  Freeholders  of  Pitts- 
burgh, Matter  of,  2962,  3614. 
Tayler  v.  American  Ribbon  Co.,  1843. 
Taylor,  Matter   of,   330,   1362,  1367. 
Taylor  v.  Attrill,   356. 

v.  Baldwin,  88,  1651. 

v.  Barnes,  485. 

v.  Betsford,    2340,    2351. 

v.  Blue  Ridge  Marble  Co.,  60. 

v.  Bolmer,   2947. 

v.  Brooklyn  El.  R.  Co..  2013. 

v.  Bulmetto,  2381. 

v.  Carson,   1025. 

v.  Church,   2094. 

v.  City  of  Cohoes,  2939. 

v.  City    of    New    York,    669,    915, 
971. 

v.  Commercial  Bank,  3870. 

v.  Enoch     Morgan's     Sons     Co., 
3862. 

v.  G  r  a  n  i  t  e      State     Provident 
Ass'n,  748,  749. 

v.  Grant,  3832. 

v.  Gurnee,   797. 

v.  Harlow,  2712. 

v.  Hatch,  549. 

v.  Hutton,    1592. 

v.  Ketchum,    2355. 

v.  Long   Island   R.    Co.,    259,    285, 
2285. 

v.  Manhattan  Ry.   Co.,  75,   487. 

v.  Metropolitan   El.    Ry.    Co.,    68, 
69. 

v.  Norrls,   4149. 

v.  North,  12S0. 

v.  Read,    2641. 

v.  Richards,  958,  960,  1003. 

v.  Risley,   2227. 

v.  Root,  980. 

v.  Satterthwaite,  1861. 

v.  Security    Mut.    Life    Ins.    Co., 

Q(\  A        5  fi  (\ 

V.Smith,  1946,  2745,  3715,  3716, 
3717. 

v.  Syme,  448. 

v.  Taylor,  504,  3862. 

v.  Thompson,  4070. 

v.  Trask,  3193. 

V.  Troncoso,   1387. 

v.  Vandervoort,    1913. 

v.  Van   Keuren,   1307. 

v.Welsh,  485. 

v.  Wing,    3818. 

v.  Wright,  2908,  2911,  2925,  3037. 

v.  Wynne,   2798. 
Tavlor  Iron  &  Steel  Co.  v.  Higgins, 

286,   2572. 
Taylor's  Estate,   Matter  of,   473. 
Taylor  Worsted  Co.  v.  Beolchi,  1606. 


Tavlor  &  Co.,  M.  J.,  v.  Asiel,  4096. 

Teal  v.   Yost,   1696. 

Teall  v.  City  of  Syracuse,  77,   500. 

v.  Pelton,   137,   144. 
Tears  v.  Van  Buren,  2115. 
Teator    v.    New    York    Mut.    Sav.    & 

Loan  Ass'n,   2923. 
Teaz  v.  Chrystie,   3S33. 
Tebo  v.  Baker,  335,  1806. 

v.  Robinson,   524. 
Teel  v.  Yost,   61,  2S86. 
Tefft  v.   Epstein,  3286. 
Teitelbaum,   Matter  of,   4066. 
Temple    v.    Murray,    1071. 
Templeton  v.  People,  2321. 
Tenbroeck  v.  Paige,  3033. 

v.  Reynolds,   1886,   1913,    2044. 

v.  Sloo,  3262,  3365. 

v.  Traveler's  Ins.  Co.,  2027. 
Ten  Eick  v.  Simpson,   3711. 
Ten  Eyck  v.  Craig,  3182. 

v.  Holmes,    2928. 

v.  Keller,    4070,    4105. 

v.  Sayer,   1612,   1615. 

v.  Town  of  Warwick,  2783. 
Tennant  v.  Guy,  910. 
Tenney  v.  Berger,  260. 
Tenoza    v.     Pelham     Hod-Elevating 

Co.,  1783. 
Terhune  v.   Dunn,   1550. 
Ter  Kuile  v.  Marsland,  976,  977,  979, 

1010. 
Terrett  v.   Brooklyn   Imp.   Co.,    2885. 
Terry  v.  Bange,   3355. 

v.  Buck,  953. 

v.  Home,  2756. 

v.  Hultz,   3270. 

v.  McNiel,   1766. 

v.  Moore,    1017,    1018. 

v.  Munger,    45. 

v.  Rubel,   1853. 
Terwilliger    v.    Ontario,    C.    &    S.    R. 
Co.,   2613. 

v.  Wheeler,   3859. 
Teschmacher  v.   Lenz,   2612. 
Tew  v.   Wolfsohn,   4113. 
Thacher     v.     Bancroft,     1529,     1539, 
3081. 

v.  Board    of    Sup'rs    of    Steuben 
County,    420. 

v.  Hope     Cemetery    Association, 
471. 
Thalheimer   v.    Hayes,    1517,    1526. 

v.  Lamont,    2316. 
Thames  Loan  &  Trust  Co.  v.  Hage- 

meyer,  2999,  3917. 
Thames    &    M.    Marine    Ins.    Co.    v. 

Dimmick,    1525. 
Thau  v.   Bankers'   &  Merchans'   Tel. 

Co.,   1629. 
Thaule  v.    Krekeler,    3905. 
Thayer  v.  Dempsey,   3355. 

v.  Gile,  825. 

v.  Holland,  2906. 

v.  Lewis,   722. 

v.  McNaughton,    2558,    2568. 

v.  Mead,   2876. 

v.  Parr,   642. 

v.  Rochester    City,    etc.,    R.    Co., 
1598,    1602. 

v.  Willet,   1406. 
Thaver  Mfg.  Jewelry  Co.  v.  Steinau, 
2718. 


TABLE  OP  CASES. 


4319 


[REFERENCES   ARE   TO   PAGES.] 


Thelberg    v.    National    Starch    Mfg. 

Co.,  955. 
Therasson  v.   Peterson,    1003. 
Thiel   v.   Schonzeit,    4174. 
Thierry  v.  Crawford,  945,   3718. 
Thiesselin  v.   Rossett,    2627. 
Thilemann    v.    City    of    New    York, 

1026,    1044. 
Thill  v.  Hoyt,  2283. 
Third  Ave.   Ry.   Co.  v.   Ebling,   2301, 
2368,    2685,    3700. 
v.  New  York  El.  R.  Co.,  1051. 
Third  Great  "Western  Turnpike  Road 

Co.   v.   Loomis,    2245,   2246. 
Third    Nat.    Bank    v.    Cornes.    3411, 
3903. 
v.  Elliott,    1474. 
v.  McKinstry,    2968. 
v.  Shields,    2144. 
Thiry  v.  Tavlor  Brewing  &  Malting 

Co.,   2253,   2756. 
Thistle  v.  Thistle,  781,  800. 
Thoesen,  Matter  of,  3435,  3436. 
Thomas  v.   Bogert,   1538,   3163. 
v.  Bronx  Realty  Co.,  2149. 
v.  Bulkley,    1366. 
v.  Cameron,   832. 
v.  Chapman,  2700,  2734. 
v.  Clarke,    2902. 
v.  Croswell,  2056. 
v.  Desmond,   828. 
v.  Dickinson,      543,      1435,      1450, 

2353. 
v.  Douglass,    2848. 
v.  Grand  View  Beach  R.  Co.,  957. 
v.  Harmon,    183,    184,   186. 
v.  Keeler,   196,   4024. 
v.  Kircher,  3320. 

v.  Loaners'  Bank,  991,  1079,  1089. 
v.  McEwen,  3396. 
v.  Merchants'    Bank,    3394. 
v.  New    York    &    G.    L.    Ry.    Co., 

829 
v.  Rumsey,  412,  2055. 
v.  Smith,   1081. 
v.  Tanner,    2377,    2379. 
v.  Thomas,   4001. 
v.  Union   Ry.   Co.,   2347. 
v.  Utica  &  B.  R.  R.  Co.,  64. 
v.  Wilson,    1876. 
Thomas  F.   Meton   &   Sons   v.   Isham 

Wagon    Co.,    892,   896. 
Thomas  Mfg.  Co.  v.  Symonds,  30. 
Thomas    Roberts    Stevenson    Co.    v. 

Tucker,    2275. 
Thomasson,  Matter  of,  307. 
Thompson,    Matter   of,    526,   529,    681, 
1394,    1395,    1415,    1641,    2795,    3081, 
3342,   4143,   4144. 
Thompson  v.   Attica  Water  Co.,  354. 
v.  Blanchard,    675,    3726,    3761. 
v.  Colonial  Assur.  Co.,  407. 
v.  Continental    Trust    Co.,    1493, 

1568. 
v.  Culver,    1517. 
v.  Ellsworth,    3763. 
v.  Erie    Ry.    Co.,    588,    590,    591, 
606,   608,    614,    635,    944,    1070, 
1074,    1077,    1078,    1844,    1923, 

v.  Finn,   2559,   2862. 

v.  Friedberg,   1328,   1336. 

v.  Griswold,    1070. 


Thompson  v.  Halbert,  961. 

v.  Hawke,   280. 

v.  Hazard,  1458,  2390. 

v.  Heidenrich,      352,      693,      1945, 
1962. 

v.  Hewitt,  573. 

v.  Howard,   42. 

v.  Jenks,  3064. 

v.  Kessel,  977. 

V.Knickerbocker   Ice   Co,    2241. 

v.  Krider,    2590. 

v.  Lumley,  2864,  3926. 

v.  Manhattan  Ry.  Co  ,  2270. 

v.  Minford,   838,   1024. 

v.  Mount,   3230. 

v.  Narwood,   1932,   1935. 

v.  New     York     El.     R.     Co..     424, 
1091. 

v.  Nixon,   3331,   3400. 

v.  Pine,   4028. 

v.  Railroad   Co.'s,   21. 

v.  Sage,    4177. 

v.  St.     Nichols     Nat.     Bank,     77, 
3023. 

v.  Sargent,  3259. 

v.  Schieffelin,   2783. 

v.  Schmieder,    3240. 

v.  Seaman,  2323. 

v.  Shepherd,    1697. 

v.  Sheridan,    4014. 

v.  Sherrard,  1625. 

v.  Sickles,  454,   987. 

v.  Simpson,  2298. 

v.  Stanley,  1014,  1015,   1019. 

v.  Starkweather,    177,   3630. 

v.  Stiles,    4058,    4062. 

v.  Strauss,    1284. 

v.  Taylor,  3605,  3853. 

v.  Thompson,    596. 

v.  Tracy,    3986. 

v.  Van   Vechten,    140,   3102,    3104, 
3133. 

v.  Vroman,    82. 

V.  Ward,   2358. 

v.  Welde,   2705. 

v.  Whitmarsh,   983. 

v.  Wood,  2011. 
Thomson,  Matter  of,   3845. 
Thomson  v.  Fairfield,  3649,  3800. 

v.  McGregor,    1636,    1637. 

v.  Perkins,   1955,   1958. 

v.  Sanders,    976. 

v.  Tilden,   1515. 
Thomson-Houston   Elec.    Co.   v.   Du-- 

rant   Land  Imp.  Co.,  3898. 
Thorburn  v.  Durra,  1047. 
Thorington    v.    Merrick,    1383,    1389, 

1444. 
Thorn  v.   Alvord,   1515,   1518. 

v.  Beard,    2050,    2944. 

v.  De  Breteuil,   4077. 

v.  Fellows,  3364. 

v.  Knapp,   32. 

v.  Roods,  3735,  4003,  4027,  4029. 

v.  Sheil,  3233. 
Thornall    v.    Crawford,    1995,    2000. 
Thornton    v.    Moore.    3858. 

v.  St.  Paul  &  C.  R.  Co.,  2788. 

v.  Thornton,   3050. 
Thorp  v.  Adams,  731. 

v.  Carvalho,  64,  2314. 

v.  Faulkner,   1359. 

v.  Fowler,   276,   2866,   3064. 


4320 


TABLE  OP  CASES. 


[REFERENCES  are  to  pages.] 


Thorp  v.  Herman,  10-11. 

v.  Keokuk  Coal  Co.,  913. 

v.  Uih-v.  J7  il\  2  3  lo,  ::i;:;r,. 
Thorpe  v.  Waddingham,  1321. 
Thousand     Islands     Park     Ass'n     v. 

Gridley,  621. 
Thrall  v.  Cuba  Village,  4120,  4128. 
Thrasher  v.  Bentley,  192. 
Throckmorton  v.  Evening  Post  Pub. 

Co.,   389S. 
Throop  v.  Hatch,  S31,  850. 
Throop  Grain  Cleaner  Co.   v.   Smith, 

1110,  1494. 
Thum  v.   Iserman,  888. 
Thurber  v.   Blanek,    1496. 

v.  Chambers,  2553,  3682.    . 
Thurber's  Estate,  Matter  of,  686. 
Thurfjell  v.  Witherbee,   1957. 
Thurman  v.   Cameron,    53S. 

v.  Mosher,    1814. 
Thursbv  v.  Mills,  1560,  3191. 
Thurst  v.  West,   27. 
Thurston  v.  E.  P.  Wilbur  Trust  Co., 
2016,    2019. 

v.  King',    665. 
Thwing  v.  Thwing,  2091,  3219. 
Tibballs  v.   Selfridge,   894. 
Tibbetts  v.   Sternberg,   2240. 
Tibbits  v.   Percy,    411. 
Tibbitts    v.    Townsend,    1397. 
Tice  v.  Dromgoole,   2262. 
Tiernan  v.   Wilson,   3142. 
Tiffanv  v.  Bowerman,  1053,  1059. 

v.  Gilbert,   807,   4010. 

v.  Lord,    271,    812,    1546. 

v.  Norris,    1002. 

v.  St.  John,  3192. 
Tifft  v.  Barton,  3130. 

v.  Bloomberg,    1058. 
Tighe   v.  Pope,   797. 
Tigue  v.   Annowski,    2712. 
Tilden,   Matter   of.   3639. 
Tilden  v.  Aitkin,  265,   2334. 

v.  Gardinier,   2712. 
Tilden's  Will,  Matter  of,  3975,   3988. 
Tillev    v.     Beverwyck    Towing    Co., 

2076. 
Tilliou  v.  Sparks,   2990. 
Tillman   v.   Lansing,    3210. 

v.  Powell,   2999. 
Tillotson  v.    Cheetham,   2S63. 

v.  Nye,  1082. 

v.  Wolcott,  1428,  3262,  3364,  3376. 
Tillspaugh  v.  Dick,  2964,  2974. 
Tilman  v.  Keane,   1999. 
Tilton,  Matter  of,  1472. 
Tilton  v.  Beecher,  862,  863,  868,  3873. 

v.  Vail,  3612. 
Tilvou,  Matter  of,   3596. 
Tim   v.    Smith,    543,    1403,    1438,    1522, 

1523. 
Timble  v.   Russell,   4111. 
Timolat  v.  S.  J.  Held  Co..  658,  744. 
Tindal  v.  Jones,   2097,  2955. 
Tinker  v.   Crooks,   3338. 
Tinkey   v.   Langdon,    334,   3332,   3337, 

3370,  3786. 
Tinkham  v.  Thomas,  2335. 
Tinkom  V.  Purdy,  3128. 
Tinney    v.    New    Jersey    Steamboat 

Co.,   2321. 
Tinslar  v.  Malkin,  407. 
Tinson  v.   Welch,   2719. 


Tischler  v.  Fishman,   1456. 
Tisdale  v.  Delaware  &  H.  Canal  Co., 
2305,  2306,  2669,  3953. 

v.  Jones,    3146. 

v.  Moore,   60. 
Title     Guarantee     &     Trust     Co.     v. 
American    Power    &    Const. 
Co.,  3636,  3651. 

v.  Fallon,   4177. 
Titman    v.    City    of   New    York,    484, 
4075. 

v.  Twelfth  Ward  Bank,  2153. 
Tito  v.   Seabury,   270. 
Titus,  Matter  of,  250. 
Titus  v.   Bullen,   2981. 

v.  Cortelyou,    1853. 

v.Fairchild,    675,    689,    3761. 

v.  Lewis,  3181. 

v.  Poole,    441,    442,    510. 

v.  Relyea,  598. 
Tobias  v.  Broadway  &  S.  Ave.  R.  Co., 

2043. 
Tobin,  Matter  of,  2044. 
Toch   v.    Toch,    2164,    3022. 
Tochman   v.    Brown,   2317. 
Todd   v.    Botchford,    706,    3087. 

v.  Crooke,    3279,    3349,    3350. 

v.  Eighmie,    2688. 

v.  Lambden,  1811. 

v.  Marsily,    1900. 

v.  Nelson,   2392. 

v.  Todd,    2295. 

v.  Union  Casualty  &  Surety  Co., 
853. 

v.  Union    Dime    Sav.    Inst.,    2231, 
3871. 

v.  Weber,    380. 
Toffey  v.   Williams,    1293,   1295. 
Tolchinsky  v.   Schiff,    3907. 
Toles   v.    Adee,    673.    678,    1355,    1357, 

1366,  1369,   1371,  1372. 
Tolhurst  v.  Howard,  4102,  4104,  4129. 
Toll  v.  Alvord,  1372. 

v.  Hiller,    3227. 

v.  Thomas,  2989,  2990,  3035. 
Tolles  v.   Wood,   3419. 
Tolman  v.    Syracuse,   B.   &  N.   Y.    R. 

Co  ,   1891,   3860. 
Tolmie   v.    Fidelity   &   Casualty   Co., 

4072. 
Tom  v.   First  Soc.   of  M.   E.  Church, 
742. 
I  Tomlinson  v.  Battel,  141. 

v.  Rowe,  3118. 
Tompkins  v.  Acer,   562. 

v.  Austin,  509. 

v.  Brown,  523. 

v.  Continental    Nat.    Bank,    1038. 

v.  Greene,   2917. 

v.  Ives,   2000,    4038. 

v.  Morton  Trust  Co.,   3888. 

v.  Purcell,   3274. 

v.  Smith,    1281,    1349. 

v.  Wadley,   2255. 
Tompkins    County    Bank    v.    Trapp, 

3323 
Tompkins  Countv  Sup'rs  v.   Bristol, 

3939,   3947,   3950. 
Tompkins'  Will,  Matter  of,  3991. 
Toms  v.  Greenwood,   2727. 
Toner  v.   City  of  New  York,  2681. 
Tonnelle   v.    Hall,    424. 
Tood  v.  Weber,   383. 


TABLE  OF  CASES. 


4321 


[REFERENCES  are  to  pages.] 


Tooker    v.    Arnoux,     854,    925,     1044, 
1081. 
v.  Booth,   2873. 
v.  Rinaldo,  2566. 
Toole  v.  De  Goicouria,  1341. 

v.  Oneida  County  Sup'rs,  3853. 
v.  Toole,    3235. 
Tooley  v.   Bacon,   2267,   2268. 
Toomey  v.  Andrews,   1024. 

v.  Whitney,   871,    874,   4098,   4099. 
Toop   v.    City   of  New    York,    2281. 
Toplitz  v.  Baier,  2161. 
v.  Garrigues,    989. 
v.  King   Bridge   Co.,    861. 
Toronto   General    Trust   Co.    v.    Chi- 
cago,   B.    &    Q.    R.    Co.,    133,    2814, 
4054. 
Torrey  v.  Bank  of  Orleans,  3224. 

v.  Black,  511. 
Torry  v.   Hadley,   2904. 
Totten,  Matter  of,  3881. 
Toucey  v.   Schell,   409. 
Tovey  v.   Culver,   1041. 
Towle  v.  De  Witt,  2829. 
v.  Forney,    117. 
v.  Jones,  2764. 
Town  v.   Safeguard  Ins.  Co.,  3334. 
Town  of  Delhi  v.  Graham,  1911. 
Town    of    Duanesburgh    v.    Jenkins, 

115,   543. 
Town   of  Dunkirk  v.   Lake  Shore   & 

M.   S.   Ry.   Co.,    1067. 
Town  of  Essex  v.  New  York  &  C.  R. 

Co.,    1066. 
Town    of  Fort  Covington   v.   United 

States  &  C.   R.  Co.,   886. 
Town    of    Guilford    v.    Cornell.    1600, 

1611,   1615. 
Town   of  Hadley,  Matter  of,   4057. 
Town     of     Hancock    v.     First     Nat. 

Bank,    920,    1721. 
Town   of  Hempstead,   Matter  of,   17, 

3638. 
Town  of  Lyons  v.   Cole,   1911. 
Town  of  Mentz  v.  Cook,   95  k 
Town   of  Middletown   v.    Rondout   & 

O.  R.  Co.,   189,   1594,  1603. 
Town   of  Mt.  Morris  v.   King,   488. 
Town  of  Ontario  v.  First  Nat.  Bank, 

829. 
Town     of     Pierrepont    v.     Lovelass, 

1978. 
Town   of  Rochester  v.   Davis,   189. 
Town   of  Ulysses  v.   Ingersoll,   4129. 
Town  of  Venice  v.  Breed,  118. 
Town    of    Windsor    v.    Delaware    & 

H.  Canal  Co.,  488. 
Towner   v.   Church,   1396. 
Townsend   v.  Babcock,   2937. 
v.  Bell,    3860,    3930. 
v.  Bogart,  1304. 
v.  City  of  New  York,  3715. 
v.  Coon,   1002. 
v.  Felthousen,  2244. 
v.  Glens   Falls   Ins.    Co.,    2615. 
v.  Hendricks,    2559,    2563. 
v.  Hillman,    1664,    1665. 
v.  Hopkins.    722,    815. 
v.  Ingersoll,    530. 
v.  Masterson,      S.      &      S.      Stone 

Dressing  Co.,  3662. 
v.  Nebonzahl,    1273,    1274. 
v.  New   York   Ins.   Co.,   1749. 

'  N.  Y.  Prac—  271. 


Townsend  v.  Olin,   3186. 
v.  Rackham,    383. 
v.  Simpson,   2836. 
v.  Tolhurst,    197,    2795,    3645. 
v.  Van   Buskirk,   2726. 
v.  Whitney,    41. 
Townshend,  Matter  of,  642. 
Townshend  v.  Fromer,  265. 
v.  Greenwich  Ins.  Co.,  954. 
v.  Norris,  908. 
v.  Thomson,  463. 
v.  Wesson,    3151. 
Towsley  v.  McDonald,   760,   765,   773. 
Tozer   v.    New    York    Cent.    &   H.    R 

R.   Co.,  2247. 
Tracey  v.  Altmyer,  2729,  3868. 
Tracy,  Matter  of,  255,  287. 
Tracy  v.  Baker,   945. 
v.  Dolan,   1907. 
v.  Falvey,  3915,  4084. 
v.  Griffin,   1335. 
v.  Leland,    1306. 
v.  New  York  Steam  Faucet  Mfg. 

Co.,   3630. 
v.  Reynolds,   804. 
v.  Stearns,  2565. 
v.  Suydam,  1744. 
v.  Talmadge,    165,    2630. 
v.  Tracy,  829. 
v.  Troy  &  L.   R.   Co.,   1595. 
v.  Veeder,    1277,    1304,    1335. 
Traders'  Nat.  Bank  v.  Parker,   3871. 
Tradesman's  Bank  v.   Merritt,   1561 

1595. 
Tradesmen's    Nat.    Bank    v.    Curtis, 
3115,  3916. 
v.  United  States  Trust  Co.,  1067, 

4126. 
v.  Young,  3432. 
Train  v.  Davidson,  3033. 

v.  Holland     Purchase     Ins.     Co., 

2294. 
v.  Taylor,   2362. 
Trankla  v.  McLean,  2268. 
Transfer   Penalty   Cases,   Matter   of, 

3905. 
Trask  v.  Annett,   681. 
Traver  v.  Eighth  Ave.  R.  Co..  957. 

v.  Jackman,   4148. 
Travis  v.  Ehlers,  913. 
v.  Myers,  1917. 
v.  Railway     Educational     Ass'n, 

747. 
v.  Tobias,    930,   2132. 
v.  Travis,     682,     686,     692,     2391. 

3736. 
v.  Waters,   2902. 
Treadwell   v.   Clark,   474,   3916,    4080, 
4121. 
v.  Fassett,   887,   896. 
v.  Green,   765. 
v.  Greene,  1742,  1802,  4096. 
v.  Lawler,  1400. 
v.  Pomeroy,   1738,   3634. 
Trebilcox   v.   McAlpinc,    2892. 
Trebing  v.  Vetter,  716. 
Trefflngrer  v.  M.  Groh's  Sons,  4169. 
Tremain     v.     Richardson,     39,     3314. 

3339. 
Tremper  v.   Wright,    664. 
Trenkmann  v.  Schneider,  2205,  2206 

2361. 
Trenndlich  v.  Hall,  1087,  1088. 


4322 


TABLE  OF  CASES. 


|  REFERENCES    ARE   TO   PAGES.] 


Tnpngnier  v.  Rose,  1466. 
Tribune   Ass'n,    Matter   of,    3357. 
Tribune    Ass'n   v.   Smith,    1045,    2028, 

2030,    3603. 
Trier  v.  Hermann,  1990. 
Trimble   v.   Kilgannon,   1873. 
v.  More,   2836. 

v.  New    York   Cent.    &   H.    R.    R. 
Co.,    2298,    3871. 
Triinm  v.  Marsh,  322,  3138,  3139. 

Trimmer    v.    City    of    Rochester, 
474,   500. 
Trinity     Church     v.     Higgins,     3831, 

3833 
Tripler  v.   Ehehalt,   2706. 
Tripp  v.   Cook,   3229,   3232. 
v.  Daball,   1078,   1079. 
v.  De  Bow,  655,  3722. 
v.  Saunders,   2881. 
Trolan  v.  Fagan,  789,   790. 
Trope  v.   Saratoga  Ass'n,   1934. 
Trotcky    v.    Forty-Second    St.    &    G. 

St.  Ferry  R.  Co.,  2694. 
Trotter  v.  Brevoort,  1722. 

v.  Bunce,   3410. 
Troup   v.   Wood,    3142,   3144. 
Trowbridge  v.  Didier,  882. 
Trow's  Printing  &  Bookbinding  Co., 
v.  Hart,     1503,    1513,    1525. 
v.  New  York  Book  Binding  Co., 

2113,    2115. 
v.  Vanderbilt,  488. 
Troxell    v.    Haynes,    1610,    1611. 
Troy    Carriage    Works    v.    Muxlow, 

662,   1361. 
Troy  Sav.  Bank  v.  Morrison,  1648. 
Troy    Waste    Mfg.    Co.    v.    Harrison, 

33    34. 
Troy   &'  B.    R.    Co.    v.    Boston.   H.    T. 
&  W.  R.  Co.,   1557,   1563. 
v.  Boston  &  H.   I.  &  W.  R.   Co., 

3751. 
v.  Tibbits,   1035. 
Truax  v.   Thorn,   3138. 
Trubee   v.   Alden,   1473. 
True,  Matter  of,  1414. 
True  v.  Lehigh  Val.  R.  Co.,  3928. 

v.  Sibley,   3785,  3847. 
Truesdell  v.  Sarles,  2765. 
Trufant   v.   Merrill,    2587. 
Trumbull   v.    Ashley,    1071. 

v.  Healy,    1364. 
Trumpbour  v.   Trumpbour,   2020. 
Trunninger   v.    Busch,    1277. 
Truscott  v.  Dole,  847. 
Trust  v.   Person.  2919. 

v.  Repoor,  279. 
Trustees     of     Amherst     College     v. 

Ritch,   3876,    3877,   3907. 
Trustees  of  Board  of  Pub.  and  Sab- 
bath    School     "Work,     Matter     of, 
3264. 
Trustees     of     Columbia     College     v. 

Thacher,    2928. 
'Trustees  of  East  Hampton  v.  Kirk, 

2295. 
'Trustees  of  First  Baptist  Church  v. 

Brooklyn  Fire  Ins.  Co.,   2220. 
Trustees  of  First  Soc.   of  Methodist 
Episcopal  Church  v.   Stewart,   393. 
Trustees     of    Freeholders     of     East 
Hampton   v.  Kirk,   2294. 


Trustees  of  Freeholders  &  Common- 
ally  of  Town  of  East  Hampton  v. 
Kirk,   463. 
Trustees  of  Hobart  College  v.  Fitz- 

hugh,    33,    34,   423. 
Trustees  of  Village  of  White  Plains, 

Matter  of,   2121. 
Tubbs  v.  Embree,  2154,  2157. 
Tuchband    v.    Chicago   &   A.    R.    Co., 

748. 
Tuck    v.    Manning,     274,     305,     1463, 

1474. 
Tucker  v.  Black,  3189. 

v.  City   of   Utica,    2929. 

v.  Dudley,   3631,   4123. 

v.  Edison  Elec.  Illuminating  Co., 
4157,    4170. 

v.  E.   L.  Goodsell  Co.,   1437,  1439. 

v.  Ely,  2263,  2333. 

v.  Gilman,  324,  2944,  2949. 

v.  Manhattan  Ry.  Co.,  957. 

v.  Mather,  1776. 

v.  Pfau,   196,   4024. 

v.  Staunton,    255. 
Tuckerman  v.  Corbin,  971. 
Tuerk     Hydraulic      Power      Co.      v. 

Tuerk,  3863. 
Tuers  v.   Tuers,   29,   2294. 
Tuffey   v.    Brooklyn   Union    Gas   Co., 

3805. 
Tuft's  Adm'r  v.   Tufts,  2801. 
Tugman  v.   National  Steamship  Co., 

29. 
Tugwell  v.   Bussing,   3130. 
Tuller  v.    Beck,   814,    1388. 

v.  Howard,   1397. 
Tullis  v.   Bushnell,   300. 

v.  Runkle,  298. 
Tully   v.   Eastburn,    2969. 
Tunstall  v.  Vinton,  304. 

v.  Winton,    259,    303,    1294,    2729, 
3044. 
Tuomey  v.   Kingsford,    1931. 

v.  O'Reilly,    1082. 
Tupper  v.  Morin,  132,  358. 
Turell    v.    Erie    R.    Co.,    1896,    1898, 

1905,   3597. 
Turner  v.  Bayles,  1000. 

v.  Borthwick,    1429. 

v.  Cedar,    4051. 

v.  City  of  Newburgh,  2264. 

v.  Conant,  59. 

v.  Davis,  268. 

v.  Dexter,   707,   1040. 

v.  Fire  Ins.  Co.,  of  Philadelphia 
County,  747. 

v.  Hadden,   54. 

v.  Roby,   851. 

V.  Thompson,   1286,  1321. 

v.  Van   Riper,    2912,    2918. 

v.  Walker,    350. 

V.Weston,    2388,    2390,    2623. 
Turney  v.  Guthrie,  3199. 
Turno  v.   Parks,  303. 
Turtle  v.  Turtle,  552,  558,  622. 
Tuska  v.  Wood,  1957. 
Tuthill,  Matter  of,  3639. 
Tuthill  v.  Broakman,  1075. 

v.  Citv  of  New  York,  1016. 

v.  Goss,  3392,  3407. 

v.  Long  Island  R.  Co.,  1932,  1935, 
1936. 


TABLE  OF  CASES. 


4323 


f REFERENCES    ARE    TO    PAGES.] 


Tuthill  v.  Skidmore,   844,   1086,   1088. 
Tuttle  v.  Hannegan,   825. 

v.  Robinson,  851. 

v.  Smith,  728,  815. 

v.  Village  of  Cortland,  297. 
Tweed  v.  Davis,  2671. 
Tweedie     Trading-    Co.,     Matter    of, 

4139. 
Tweed's  Case,  2191. 
Tweedy   v.    United    Life    Ins.    Ass'n, 

1669. 
Twelve  Commitments,  Case  of,  98. 
Twiss  v.  Lehigh  Val.  R.  Co.,  2352. 
Tyler  v.   Aetna   Fire   Ins.   Co.,    1678, 
2850. 

v  Ballard,  1424,  2797. 

v.  Heidorn,  460. 

v.  Hoornbeck,  2710,  2713,  2714. 

v.  Simmons,  2633,  3605. 

v.  Third  Ave.  R.  Co.,  2328. 

v.  Whitnev,   3185,   3359. 

v.  Willis,   3185,  3359,   3374. 
Tynan  v.  Cadenas,  1863. 
Tyng,   In  re,  2945,   2946. 
Tyng  v.  American  Surety  Co.,   1459. 

v.  Marsh,    2660,    2676. 

v.  United    States    Submarine    & 
Torpedo  Boat  Co.,  1967. 
Tyron  v.  Jennings,  3829. 


Ubsdell  v.  Root,  3668. 

Uertz  v.  Singer  Mfg.  Co.,  2268. 

Uggla    v.    Brokaw,    4092,    4109,    4114, 

4115,  4125. 
Uhl  v.  Kohlmann,  2021. 

v.  Loughran,   2039,   2048,   2049. 
Uhlefelder    v.    City    of    Mt.    "Vernon, 

2665. 
Uhlfelder  v.  Dunn,  2126,  2129. 

v.  Tamsen,  432,  433. 
Uhlman  v.  Uhlman,  3666,  3913. 
Ulbricht  v.  Ulbricht,  2156. 
L'line  v.  New  York  Cent.  &  H.  R.  R. 

Co.,  618,  1742,  3635. 
Ullman  v.  Gorman,  1549,  1550. 

v.  Jacobs,  1033. 
Umfreville    v.    Manhattan    Ry.    Co., 

1853. 
Unckles  v.  Hentz,  1014,  3626. 
Underhill  v.  Collins,  55. 
v.  Dennis,  3981. 
v.  Manhattan  Ry.  Co.,  2150,  2152, 

2157. 
v.  Phillips,   2843. 
v.  Rumsey,  45. 
v.  Rushmore,   2916. 
v.  Underhill,  3223. 
v.  Waite,  2218. 
Underwood  v.  Green,  3067. 

v.  Sutcliffe,      2799,      2826,      3344, 
3359,  3372. 
Unger  v.    Forty-Second   St.,    etc.,   R. 

Co.,  2128,  2130,  2132. 
Union    Bag    &    Paper    Co.    v.    Allen 

Bros.  Co.,  2587,   2772,   2773,   2813. 
Union  Bank  v.  Bush.  2891. 

v.  Mott,     177,     1042,     1043,     1341, 
1345,  1707,  2597,  2645. 
Union  Bank  <>f  Sandusky  v.  Torrey, 
1755,  1756,  1765. 


Union    Bank    of    Troy    v.    Sargeant, 

3275. 
Union    Consol.    Mining  Co.    v.    Raht, 

1390. 
Union   Cotton   Manufactory   v.   Lob- 
dell,  56. 
Union  Dime  Sav.  Inst.  v.  Andarson, 
3220. 
v.  Duryea,  2804. 
Union   Distilling   Co.    v.    Ruser,    812, 
1386,    1387. 
v.  Union      Pharmaceutical      Co., 
1527. 
Union  Furnace  Co.  v.  Shepherd,  654. 
Union     Hardware     Co.     v.     Flagler, 

859. 
Union  India  Rubber  Co.  v.  Babcock, 

3923,  3970. 
Union  Nat.  Bank  v    Bassett.  1028. 
v.  Kupper,   37,   3594. 
v.  Warner,  3427. 
Union  Paper  Collar  Co.  v.  Metropol- 
itan Collar  Co.  1849. 
Union    Square   Bank   v.    Reichmann, 

1730,    1731,    1765. 
Union    Surety    &    Guaranty    Co.    v. 
Greater   New   York  Amuse- 
ment Co.,  3652. 
v.  Sire,  3345. 
Union  Trust  Co.  v.  Boker,   429. 
v.  Driggs,   1855. 
v.  Olmsted,  128. 
v.  Whilton,    3968. 
V.  Whiton,  3960. 
United  Bldg.  &  Loan  Bank  v.  Bart- 

lett,  876. 
United  Press  v.  Abell,  1048. 

v.  New     York    Press    Co.,     2998, 
3025. 
United  States  v.  Dodge,  143. 

v.  Graff,      143,     144,     1392,     1406, 

1472. 
v.  White,  454. 
United    States   Glass    Co.    v.    Levett, 

1661. 
United  States  Land  Inv.  Co.  v.  Mer- 
cantile Trust  Co.,  866. 
United  States  Land  &  Emig.   Co.   v. 

Pike,  3275,  3300. 
United    States    Land    &    Imp.    Co.    v. 

Bussey,  1866. 
United  States  Life  Ins.  Co.  v.  Gage, 
794    924. 
v.  Jordan,   1014,   1015,   2754,   2860. 
v.  Poillon,   88. 
United  States  Mortg.  &  Trust  Co.  v. 

Hodgson,   1996. 
United   States   Nat.    Bank   v.   Home- 
stead Bank,  1083. 
United    States   Net    &   Twine   Co.    v. 

Alexander,  1445. 
United     States    Trust    Co.     v.     New 
York,    W.    S.    &   B.    Ry.    Co., 
630,  1620,  1630. 
v.  Stanton,  982. 
United  States  Vinegar  Co.  v.  Schle- 

gel,  964,  2272. 
United   Verde   Copper   Co.    v.    Tritle, 

L386. 
Untermeyer      v.      Beinhauer,      2141, 
2559,  2563,  257  1. 
v.  Hutter,  1292. 


:  24 


TABLE  OF  CASES. 


[EEFEBENCES   ABE  TO   PAGES.] 


Updegroff     v.     Judges     of     Niagara 

County,  31S8. 
Upham  v.  Cohn,  2872. 
Upington  v.  Corrigan,  S31. 

v.  Pooler,  2677. 
Upson  v.  Hesselson,  1S93. 
Uransky    v.    Dry    Dock,    E.    B.    &   B. 

R.  Co.    2252. 
Utica  City  Bank  v.  Buell,  3296. 
L'tica  Clothes  Dryer  Mfg.  Co.  v.  Otis, 

40,  50. 
Utica  Ins.   Co.   v.   Lynch,    1644,   2645, 
3914. 
v.  Power,  3208,  3418. 
Utica   Water-Works    Co.    v.    City    of 

Utica,  2939,  3940. 
Utter  v.  McLean,  2822,  2890,   2891. 

v.  Nelligan,  4032. 
Uvalde  Asphalt  Paving  Co.  v.  Dunn. 

1681. 


V ,  Matter  of,  251. 

Vadney  v.  Thompson,  2360. 
Vagen  v.  Birngruber,  2771. 
Vail  v.  Foster.  3407. 

v.  Lane,  659. 

v.  Lewis,  3135,  3193. 

v.  Revnolds,      2294,      2322,      2347, 
3904. 
Valarino  v.  Thompson,  144. 
Vale  v.  Brooklyn  Cross-Town  R.  Co., 

584,  1948. 
Valentine  v.  Conner,  3869. 

v.  Healey,  1031. 

v.  Kelley,  2340. 

v.  Kelly,   4009. 

v.  Lunt,  1011. 

v.  McCue,  3217. 

v.  Mvers'    Sanitary    Depot,    806, 
SOS,   2113,   2116. 

v.  Richardt,  1289,  1325. 

v.  Robinson,   1435. 

v.  Rose,  4140. 

v.Valentine,   3990. 
Valentine's   Estate,   Matter  of,   3619. 
Valiente   v.   Bryan.    3040,    3341,    3342. 
Valk  v.  McKeige,  2930. 
Valleau  v.  Cahill,  635. 

v.  Valleau,  488. 
Vallen   v.   McGuire,    4009. 
Vallenberg  v.  Wahn,  4145. 
Valton  v.  National  Fund  Life-Assur. 
Co.,   176S,   2256. 

v.  National  Loan   Fund  Life  As- 
sur.  Soc,  1766,  2181. 
Van    Alen    v.    American    Nat.    Bank, 
3948. 

v.  Feltz,   51S. 
Van  Allan  v.  Gordon,  3603. 
Van  Allen,  Matter  of,  1621. 
Van  Allen  v.  Glass,  1996. 

v.  New    York    El.    R.    Co.,    2147, 
2161. 

v.  Rogers,  2761. 

v.  Sampson,  1519. 

v.  Schemerhorn,  2109. 
Van  Alstyne  v.  Cook,  1634,  2782. 

v.  Erwine,    544,    1446,    1531. 

v.  Fredav,  1074. 
Vanamee,  Matter  of,  1321. 
Van  Antwerp  v.  Lyle,  2818,  2825. 


Van     Antwerp     v.     Newman,     3113, 

3133. 
Van   Arsdale  v.   King,   147,    148,    224, 

233,   598,   3607. 
Van  Benschoten  v.  Yaple,  1078. 
Van  Benthuysen  v.  Stevens,  661,  918. 
Van  Bergen  v.  Ackles,  2678,  2991. 
Van  Beuren,  Matter  of,   2842. 
Van    Beuren    v.    Wotherspoon,    3902, 

392S 
Van  Bokkelen  v.  Berdell,  2246,  2665. 
Van  Brocklin  v.  Van  Brocklin,  1915, 

2083,   2086. 
Van  Brunt  v.  Van  Brunt,  2998. 
Van  Buren  v.  Cockburn,  2239. 
v.  Fort,   2116,   2118. 
v.  Loper,   1421. 
v.  Stokes,  2691. 
v.  Wells,  2225. 
Van  Buskirk  v.  Roy,  1864,  1869. 

v.  Stow,   2618. 
Van  Camp  v.  Fowler,  3713. 

v.  Searle,     307,     765,     1384,     1449, 

1461,    1465,    1482,    1483,    1484,. 

1516,    1531,    1538,    3103,    3141. 

Van  Camp  Packing  Co.   v.  McGuire, 

2337. 
Van  Cleef  v.  Fleet,  3133. 
v.  Sickles,  3408,  3414. 
Van  Clief  v.  Mersereau,  3723. 
Van  Cott  v.  Prentice,  797,   1034. 

v.  Van  Brunt,  445. 
Vandeburgh  v.  Gaylord,  189. 
Vandegrift  v.  Bertron,  4092. 
Vandemark  v.   Vandemark,   3977. 
Vandenbergrh      v.      Mathews,      2674, 

2675,  3843. 
Vandenburgh  v.  Briggs,  3132. 

v.  Van  Rensselaer,  5  98. 
Vanderbeck  v.  Rochester,  1055. 
Vanderbilt    v.    Schreyer,    912,     1605, 

2815. 
Vanderburgh    v.     New     York     City, 

2824. 
Vandercook  v.  City  of  Cohoes,   2601. 
Van    Derlip   v.   Keyser,    2594,    2621. 
Vandermulen  v.  Vandermulen,  397. 
Vanderpool  v.  Kissam,  1317. 
Vandervoort  v.   Columbian  Ins.   Co., 
1733,   1738. 
v.  Smith,  2704,  2706,  2709. 
Vanderwerken  v.   Brown,   4036. 
Vanderwerker  v.  People,  104. 
Vanderzee  v.  Hallenbeck,  873. 

v.  Van  Dyck,  345. 
Vandeveer  v.  Warren,  2976. 
Van  Deventer  v.   Van   Deventer,   62, 

2144,  2146,  2155. 
Vandevoort  v.  Gould,  64. 
Van  Dewater  v.  Gear,  265,  1544. 

v.  Mutual  Reserve  Life  Ins.  Co., 
4148,   4157. 
Van     Dolsen     v.     Abendroth,     2376, 

2784. 
Van  Doren  v.  Horton,  2718. 

v.  Jelliffe,  926,  2237,  2370. 
Van  Dyck  v.  McQuade,  1941. 
Van  Dvke  v.  Gardner,  829,  3866. 
Van  Etten  v.  Hasbrouck,  610,  2829. 
Van      Gelder     v      Hallenbeck,      297,. 
2991,  3956,  3958. 
v.  Van    Gelder,    2932,    3127,    3128, 
3140,    3141,    3143,    3954,    3965. 


TABLE  OF  CASES. 


4325 


[REFERENCES    ARE    TO    PAGES.] 


Van    Heusen    v.    Kirkpatrick,    4008, 

4011. 
"Van  Horn  v.  Kittitas  County,  1413. 
Van  Home  v.  France,  3676. 

v.  McLaren,  3182. 

v.  Montgomery,   663,   S94,  2853. 
Van   Ingen   v.    Herold,    2558. 

v.  Snyder,  3712. 
Van  Keuren  v.  Miller,  54,  68. 

v.  Parmelee,  520. 
Van   Kirk  v.   Sedgwick,    3118. 
Van  Kleeck  v.  Nichols.  1924. 
Van  Liew  v.  Johnson,  72. 
Van    Loan    v.    City    of    New    York, 
4171,   4178. 

v.  Squires,   429,   1864,   3604. 
Van  Loon  v.  Lyons,   123. 
Van   Mater  v.   Burns,   2694. 
Van  Namee  v.  People,  918. 
Van  Ness,  Matter  of,  589,  3265,  3268. 
Van  Ness  v.   Bush,    1742,    1769,   2256, 
2257. 

v.  Hamilton,   841. 
Van  Nest  v.  Talmage,  925. 
Van   Nest  Land   &   Imp.   Co.   v.   New 

York  &  W.  Water  Co.,   1566. 
Van  Olinda  v.  Hall,  862,  871. 
Van  Orden  v.  Van  Orden,   3598. 
Van  Planck  v.  Godfrey,  773. 
Van  Ray  v.  Harriot,  1800. 
Van    Reed    v.    People's    Nat.    Bank, 

1384,  1394. 
Van  Rensselaer  v.  Chadwick,   784. 

v.  Dole.  2742. 

v.  Dunbar,  760. 

v.  Jewett,  2288. 

v.  Jones,  840. 

v.  Livingston,  446,   450. 

v.  Sheriff  of   Albany,    3163,   3164. 

v.  Sheriff    of    Onondaga    County, 
265,   3164,   3167. 

v.  Van  Rensselaer,  2153. 

V.  Witbeck,  171,  3086. 

v.  Wright,    467,    3071,    3097,    3832. 
Van  Rensselaer's  Ex'rs  v.  Gallup,  81. 
Van  Riper  v.  Poppenhausen,   2926. 
Van  Roy  v.  Harriott,   1796. 
Van  Schaick  v.   Sigel,   1282. 

v.  Winne,    236,    2966. 
Van  Shaick  v.  Stuyvesant,  2049. 
Van  Sickle  v.  Van  Sickle,  33. 
Van  Slyck  v.  Ingersoll,  2565. 
Van  Slyke  v.  Hyatt,  613,  2643. 
Van    Steenburgh    v.    Hoffman,    2616, 

2649. 
Van   Tassel  v.  Van  Tassel,   284,   478, 

494. 
Van   Tassell   v.   New   York.   L.   E.    & 

W.  R.  Co.,  2703,  2714. 
Van  Tuyl  v.  Van  Tuyl,  2738. 
Van  Valen  v.  Lapham,  985. 
Van    Valkenburgh    v.    Van    Schaick, 

2963. 
Van    Vechten    v.    Hall,     1420,     1422, 
3264. 

v.  Hopkins,  2056. 

v.  Paddock,  104. 
Van     Veghten     v.     Howland,      1557, 

1561,  1563. 
Van  Vlock  v.  Ballou,  3654. 

v.  Clark,  1918. 

v.  Van  Vleck,  264,  3011. 


Van  Volkenburgh  v.  Bates,  1493. 

Van  Voorhes  v.  Leonard,  1338. 

Van  Voorhis  v.  Kelly,  2150. 

Van  Waggenen  v.  McDonald,  2864. 

Van  Wagonen  v.  Terpenning,  503. 

Van  Wagonen's  Will,  Matter  of,  230. 

Van  Wickle  v.  Baron,  1039. 

Van  Williams  v.   Elias,  4072,   4154. 

Van  Winkle  v.  Udall,   3117. 

v.  Weaver  Coal  &  Coke  Co.,  4082, 
4143. 
Van  Woert  v.  Ackley,  1916. 
Van  Wormer  v.  Van  Voast,  3211. 
Van  Wyck,  Matter  of,  3216. 
Van  Wyck  v.  Baker,  2910,  3217,  3967, 
3968. 

v.  Bauer,  1389. 

v.  Bradly,  3323. 

v.  Hardy,  718,   765,  766,   771,  776, 
777,  779,  2045. 

v.  Howard,  81. 

v.  Mcintosh,   2218. 

v.  Pine,  3116. 

v.  Reid,  3027. 
Van   Zandt  v.    Grant,   1006,    1090. 

v.  Van     Zandt,     882,     937,     1006, 
4104. 
Vargas,  Matter  of,  1529. 
Varian  v.  Stevens,  2040. 
Varick  v.  Smith,  57. 
Varnum  v.  Hart,  481,  947,  2370,  3101. 

v.  Wheeler,  2986,   2988,   3036. 
Varona  v.   Socarras,   2245. 
Vary  v.  Godfrey,  549. 
Vassear  v.  Livingston,   968,  969. 
Vaughn  v.   Ely,  3148. 
Vaughn    Machine    Co.    v.    Quintard, 

2256. 
Veazey  v.  Allen,  3877. 
Vedder  v.  Lansing,  3064. 
Veeder  v.   Baker,    52,   356,   641,    1931, 
1950,  1960,  3786. 

v.  Fonda,  321S. 

v.  Judson,  2989. 

v.  Mudgett,   3950. 
Veiller    v.     Oppenheim,     1830,     1831, 

1842. 
Veinstok  v.  Veinstok,  1665. 
Veit  v.  Collins,  1567. 
Velie  v.   Newark  City   Ins.   Co.,    834, 

1085. 
Vellerman  v.  King,   1994. 
Velsey  v.  Velsey,  4022. 
Venable,  In  re,  4155,  4166. 
Venable  v.  Harlin,  986. 

v.  New    York   Bowery    Fire   Ins. 
Co.,  1494. 
Venanzio  v.  Weir,   1885. 
Vence  v.  Speir,  1982,  2978,  2981. 

v.  Vence,   364. 
Verastegni  v.  Luzunarez,  1305. 
Verdin  v.  Slocum,  2798. 
Vermeule  v.  Beck,   73. 
Vermilyet,  Ex  parte,  2194. 
Vermilyea  v.  Palmer,  2344. 
Vermont  Cent.  R.  Co.  v.  Northern  R. 

Co.,  347,  1940,   1941,   1944. 
Vermont     Marble     Co.     v.     Wilkes, 

3368. 
Vernam  v.  Holbrook,  577. 
Vernier  v.  Knauth,  3787. 
Vernon  v.  Gillen  Printing  Co.,  661. 


4326 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


Vernori  V.  Palmer,  724,  815,  3839. 

Vernovy  v.  Tauney,  613. 

Verplanck    v.    Kendall,    1915,    1916, 

2152. 
Vessell  v.  Marx,  2131. 
Vetterlein  v.   Barnes,   1913. 
V.   G.    Pfluke   Co.    v.    Papulias,    1399. 

1400,   1517,  1525. 
Vial   v.  Jackson,   1782. 
Viall  v.  Dater,  3121. 
Vibbard  v.   Roderick,   1044. 
Vick  v.  City  of  Rochester,  1571. 
Victory  v.  Blood,  3612. 
v.  Foran,  2662. 
v.  Krauss,   2066. 
Victory     Webb,     etc.,     Mfg.     Co.     v. 

Beecher,  926. 
Vidette  v.  Dudley,  1799. 
Vidrard  v.  Fradneburg,   3208. 
Viele  v.   Wells.   117. 
Vieller  v.  Oppenheim,  1782. 
Vietor,  Matter  of,  3260. 
Vietor  v.  Bauer,   2268. 

v.  Goodman,   2089,   2093. 
v.  Halstead,  3006. 
v.  Henlein,  1390,   1403,   1524. 
v.  Lewis,   1564. 
Viets  v.  Union  Nat.  Bank,  442,  526. 
Vilas  v.  Butler,  2824. 
v.  Page,   626. 

v.  Plattsburgh  &  M.  R.  Co.,  273, 
2819,   2820. 
Village  of  Bronxville  v.  New  York, 

W.  &  C.  Traction  Co.,  3705. 
Village  of  Canandaigua  v.  Benedict, 

3652. 
Village    of    Champlain     v.    McCrea, 

3616. 
Village    of    Herkimer   v.    New    York 

Cent.  &  H.  R.  R.  Co.,  3914. 
Village     of    Little     Falls     v.     Cobb, 

1013. 
Village    of    Palmyra    v.    Wynkoop, 

1014. 
Village    of    Rhinebeck,    Matter    of, 

193. 
Village    of   St.    Johnsville   v.    Smith, 

3642. 
Village  of  Tonawanda  v.  Price,   651. 
Village  of  Warren  v.  Philips,  1001. 
Villias  v.  Stern,  1001. 
Vilmar,  Matter  of,  2589. 
Vilmar    v.    Schall,    1765,    1768,    2566, 

3012. 
Vincent  v.  Conklin,  1769. 
Vincett  v.  Cook,  2266. 
Viner  v.  James,  4124. 
Vingut  v.  Ketcham,  4177. 

v.  Vingut,   3241. 
Virgil  v.  Newmark,  3891. 
Vitolo  v.  Bee  Pub.  Co.,  747,  748,  749. 
Vitto  v.  Farley,  2103. 
Vlasto  v.  Varelopoulos,   1073. 
Vogel  v.  Badcock,  60. 
v.  Schlueter,   4036. 
Vogt  v.  Vogt,   4126. 
Vogt  Mfg.  &  Coach  Lace  Co.  v.  Oet- 

tinger,  1001,  2934. 
Voight  v.  Meyer,  462. 
Voisin  v.   Commercial  Mut.   Ins.  Co., 

1975,  2745,  3629. 
Volkening  v.  De  Graaf,  3907. 


Volger  v.  Force,  3014. 
Volikommer     v.     Cody,     2261,     2369, 
3386,  3881. 

v.  Nassau  Elec.  R.  Co.,  2707. 
Volz  v.  Steiner,   458,  771. 
Von  Ax  Halstead  v.   Halstead,   1848. 
Von  Der  Born  v.  Schultz,  4  1  (17. 
Von  Gerhard  v.  Lighte,  1365,  1372. 
Von   Hagen   v.  Waterbury  Mfg.  Co., 

960. 
Von  Hatten  v.  Scholl,   2757. 
Von  Hess  v.  Morton,  763. 
Von  Hesse  v.  Mackaye,  761,  763,  775, 

812. 
Von  Keller  v.  Schulting,  3966. 
Von   Rhade  v.   Von  Rhade,   768,    772, 

775. 
Von  Sachs  v.  Kretz,  504. 
Von  Schoening  v.  Buchanan,  2365. 
Von  Wagoner  v.  Royce,  3835. 
Von  Wallhoffen  v.  Newcombe,  258. 
Voorhees  v.  Butchard,  2265. 

v.  Dorr,  264. 

v.  Gros,   3121. 

v.  Howard,   3392. 

v.  Martin,  224. 

v.  Seymour,   3297. 
Voorhies  v.  Scofleld,  815. 
Voorhis  v.  Childs'   Ex'r,   2095. 

v.  French,  2173,  3013,  3651. 

v.  Voorhis,    2625. 
Voorhis'  Estate,  In  re,  3985. 
Vooth  v.   McEachen,   4060. 
Vorce  v.  Oppenheim,  2343. 
Vosburgh  v.  Huntington,   1859,  1862, 
1864. 

v.  Teator,    2349. 
Vose  v.  Florida  R.  Co.,  3868. 

v.  Kuhn,   4086. 

v.  Woods,  1547. 
Voshefskey      v.      Hillside      Coal      & 

Iron  Co.,  1031. 
Vosper  v.  City  of  New  York,  2304. 
Voss  v.   Fielden,   1924. 
Vought  v.  Gedney,  2370. 
Vredenbergh  v.   Beumont,  3298. 

v.  Morris,  2798. 
Vroman  v.  Rogers,  2321. 
Vroom  v.  Ditmas,  2927. 
Vrooman  v.  Pickering,  299. 

v.  Turner,  383. 
Vulcanite    Portland    Cement    Co.    v. 
Williams,  4148. 

W. 

Wade  v.  De  Leyer,  2873,  3069. 

v.  Kalbfleisch,  2067,  2068. 
Wadley,  Matter  of,  113,  234,  238,  600, 

602,  3077. 
Wadlev  v.  Davis,  976,   3077. 
Wadsworth  v.  Georger,  1025,  1949. 
Waeber  v.  Talbot,  1505. 
Waffle  v.  Dillenback,  2333. 

v.  Goble,  765,   766,   1386. 

v.  Vanderheyden,  804. 
Wegener  v.  Bill,  2760. 

v.  Finch,  2594. 
Wager  v.  Corwin,  2278. 

v.  Link,  381,  2753. 

v.  Stickle,   2872. 

v.  Wager,  158. 


TABLE  OF  CASES. 


4327 


[references  are  to  pages.] 


Waggoner  v.  Brown,  887,  894. 

v.  Finch,  2594. 
"Wagner  v.  Adams.  1903. 

v.  Jones,  3133. 

v.  Long  Island  R.   Co.,   2311. 

v.  New  Tork  El.  R.  Co.,   2380. 
Wahle  v.  McMillen,   1785,  1796. 
Wahlheimer  v.    Truslow,    4179. 
Waid  v.  Gaylord,   3117. 
Wainman  v.  Hampton,  2611. 
Wainwright  v.  Low,  1739. 

v.  Queens     County     Water     Co., 
382 

v.  Tiffiny,  3316. 
Wait  v.  Ferguson,  1003. 

v.  Van  Allen,  705. 
Waite,  Matter  of,  133,  443. 
Waite  v.  Diocesan  Convention,  2268. 

v.  F.  J.   Kaldenberg  Co.,  1704. 

v.  Sabel,  925. 
Wakeman  v.  Everett.  983. 

v.  Grover,   3412. 

v.  Russel,  3397. 

v.  Sherman,   520,   522,  523. 

v.  Sprague,   2190. 
Walbourn  v.  Hingston,  990. 
Walbridge  v.  James,  3248,  3595. 

v.  J.  De  Wing  Pub.  Co.,   2026. 
Walcott  v.  Hilman.  379. 
Waldman  v.  O'Donnell,  1423,  3265. 
Waldron  v.  Fargo,  2292,  3870. 

v.  Walker,  3333. 
Wales  v.   Hart,  2993. 
Wales  Mfg.  Co.  v.  Lazzaro,  864,  873. 
Walkenshaw  v.  Perzel,  427,  588,  589, 

612,    798. 
"Walker  v.   American   Cent.   Ins.   Co., 
972,  988. 

v.  Baermann,   4009. 

v.  Bissell,  885. 

v.  Burnham,    2994. 

v.  Chilson,  1666,   1997. 

v.  Donovan,   3258. 

v.  Dunspaugh,    2237. 

v.  Granite  Bank,  1846. 

v.  Henry,   3102,    3115,   3126. 

v.  Hubbard,   715. 

v.  Isaacs,    3206,    3209. 

v.  Johnson,  1996. 

v.  McCormick,  4161. 

v.  Newton  Falls  Paper  Co.,  4167. 

v.  Pease,  48. 

v.  Reiff,   773,   775. 

v.  Russell,   2940. 

v.  Spencer,  1734,  3612. 

v.  Tamsen,    1682. 

v.  Walker,   594. 
"Walker's  Will,  Matter  of,  1091. 
Wall  v.  Beach,  434. 

v.  Thorn,  3192. 
Wallabout    v.    Military    Club,    1402, 

1403. 
Wallace   v.   American   Linen   Thread 
Co.,   1999,    2164,    3634. 

v.  Baring.   1437. 

v.  Berdell,  994,  3237,  3245.  3912. 

v.  Blake,  1734,  1736,  1744,  1745. 

v.  Bond,  1936. 

v.  Castle,   1396.   1434,   3665. 

v.  Dimmick,   718,   1949. 

v.  Dinniny,   3704,  3705. 

v.  Eaton,  999. 

v.  Feely,  3223. 


Wallace    v.    Jones,    1064,    4049,    4050, 
4091,  4113. 

v.  Markham,   2956. 

v.  Marks,   2247. 

v.  Murphy,   1291. 

v.  Reinhart,  1777,   1786. 

v.  Swinton,  3076. 

v.  Syracuse,    B.    &   N.   T.    R.    Co., 
1665,  1783. 

v.  Wallace,   1415,   1641,   1798. 
Wallace  &  Sons  v.  Castle,  1286. 
Wallach    v.    Commercial    Fire    Ins. 
Co.,  943. 

v.  Manhattan  El.  R.  Co.,  4160. 

v.  Manhattan  R.  Co.,  2077. 
Waller   v.   Harris,   3176. 

v.  Lyons,  1085. 

v.  Raskan.  77,  1068. 
Walling  v.  Miller,  1641,  3101,  3140. 
Wallis  v.  Lott.  784. 
Walmsley  v.   Nelson,  1842,   1845. 
Walp  v.  Boyd,   2916. 
Walradt  v.  Maynard,  261. 

v.  Phoenix  Ins.  Co.,   3116. 
Walrath  v.  Abbott,  2384. 

v.  Klock,  4003. 
Walrod  v.  Ball,  3863. 
Walsh    v.    Bowery   Sav.   Bank,    2360, 
2367,   2972. 

v.  Brown,   3832. 

v.  Durkin,   51. 

v.  Empire    Brick    &    Supply    Co., 
1705,    1997     4139. 

v.  Hanan,  3832. 

v.  Kelly,   2345. 

v.  Kursheedt,   882. 

v.  Manhattan   Rv.    Co.,   2358. 

v.  Matchett,   2339. 

v.  Press  Co.,   1842. 

v.  Savre,    1817. 

v.  Schulz,    1364. 

v.  Sun  Mut.   Ins.   Co.,   1911,   2055. 

v.  Trustees    of    New   York    &    B. 
Bridge,  1013. 

v.  Van   Allen,   3956. 

v.  Walsh,   2108,   2115. 

v.  Washington   Marine    Ins.    Co., 
2370. 
Walsworth  v.  Wood,  2674. 
Waltenberg  v.   Bernhard.   3646. 
Walter  v.   De   Graaf,   262,   772,   2039, 
2047,   2049. 

v.  F.     E.     McAllister    Co.,     2574, 
2577,    257S. 

v.  Fowler,  1066,  1079. 

v.  Lockwood,  830. 

v.  McAllister,   135. 

v.  Pecare,   3294. 
Walters  v.   Continental  Ins.  Co.,   61. 

v.  Kraemer,    3659. 

v.  Sykes,  3066.  3088,  3088,  3118. 

v.  Syracuse     Rapid     Transit     R. 
Co.,  2283,   2286. 
Waltham    Mfg.    Co.    v.    Brady,    884, 

1069,  3631. 
Walton  v.   Chadwick,   1518. 

v.  Dalv,    1505. 

v.  Fairehild,   257. 

v.  Godwin,  1742. 

v.  Meeks,   2930. 

v.  National  Loan  Fund  Life  As- 
sur.   Soc.    3691. 

v.  Walton,   1001. 


i::-J> 


TABLE  OF  CASES. 


[REFERENCES   ARE   TO   PAGES.] 


Walts  v.  Nichols,  1390,  1514. 
Wambaugh  v.  Gates,  2807,  3145. 
Wamslev     v.     liorton     &     Co.     2081, 

2571. 
Wanamaker  v.   Megraw,   1741,   1 1 63, 

17  04,    1766,   2108,   2109. 
Wandell  v.   Edwards,   947. 
Wandelt  v.   Burnett,   1284. 
Wands  v.  Robarge,  816.  3602. 
Wangner  v.  Grimm,  2295,  2301,  2369, 

3S85. 
Wannemacher  v.  Davis,    1296. 
Wappus  v.  Donelly,   3906. 
Ward,  Matter  of,  16,  3639. 
Ward  v.   Arredondo,   127. 
v.  Barber,   1048. 
v.  Beebe,  3294. 
v.  Bundy,  187. 
v.  Comegys,  984,   990. 
v.  Craig-,   291,   292,   984,   2611. 
v.  Davis,    365. 
v.  Dewey,  1567,  1665. 
v.  Bdesheimer,  3704. 
v.  Forrest,    2323. 
v.  Gillies,    663,    1024. 
v.  Gore,  49. 
v.  Haig-ht,   2867. 
v.  Hasbrouck,  3865. 
v.  Hoag\    3863. 
v.  James,  2901,  3030,  3247. 
v.  Kilpatrick,    2267.    2647. 
v.  Littlejohn,   871,   879. 
v.  New  York  Life  Ins.  Co.,  1836. 
v.  Petrie,    997,    1090.    3262,    3366, 

3372,    3432,    3433. 
v.  Plato,   2147. 
v.  Roy,    261,   2947,    3258. 
v.  St.  Vincent's  Hospital,   2S,   31. 
v.  Sands,  276,   612,   637,  718,  3189. 
v.  Smith,    3787,    4047,    4129,    4137. 
v.  Van  Bokkelen  1595. 
v.  Ward,    2607,    2634,    2636,    2642, 

2933,    3026. 
v.  Warren,    2685. 
v.  Wordsworth,   3636. 
Warde,  Matter  of,   109. 
Wardell  v.  Eden,  657,  2841. 

v.  Mason,  651. 
Warden  v.  Browning-,  3417. 
v.  Frost,  2755. 

v.  Post  Steamboat  Co.,   1687. 
Ware  v.  Dos  Passos,  3877. 
Waring  v.   Acker,    2993. 
v.  Avres,   3749. 
v.  O'Neill,   34,   37. 
v.  Senior,    3688,    3725. 
v.  Somborn,    3759. 
v.  United  States  Tel.  Co.,  2691. 
v.  Waring,    424,   2047,    2094,   3234. 
v.  Vale,  1918. 
Warn  v.  New  York  Cent.  &  H.  R.  R. 

Co.,   149,   3625. 
Warner,  Matter  of,  449,  450. 
Warner  v.   Babcock,   1992. 
v.  Canovan,  297. 
v.  Ford,    2942. 

v.  Fourth  Nat.   Bank,   1411,  1468. 
v.  Harvey,  1735. 
v.  Henderson,   195,  196,  3644. 
v.  James,    4050,    4116. 
v.  Lessler,   3953. 

v.  New  York  Cent.  R.   Co.,   2357, 
2359,  2363. 


Warner  v.  Paine,  265,  3102,  3191. 
v.  Palmer,  355. 
v.  Ross,    397,   408,   1903,   1904. 
v.  Schweitzer,    2085. 
v.  Village  of   Randolph,  22S4. 
V.Warner,   47,   714. 
v.  Western     Transp.     Co. ,    2559, 

3890. 
v.  Wigers,   2166. 
Warnock's  Will,  Matter  of,   3991. 
Warren,   In  re,   4176. 
WTarren  v.  Buckley,  3018. 
v.  Chase,  2977. 
v.  Eddy,  3847. 
v.  Haight,  2329. 
v.  Parkhurst,  4050. 
v.  Rogers,   2352. 
v.  Sprague,   1646. 
v.  Tiffany,  773. 
v.  Union     Bank     of     Rochester, 

827. 
v.  Warren,  2662. 
v.  Wendell,   1346,   1348. 
Warring  v.  Loomis,  3129. 
Warsaw  Water  Works  Co.  v.  Village 

of  Warsaw,   1592,  1599. 
Warshauer  v.  Webb,    376. 
Warth  v.   Radde,   75. 
Washbon  v.  Cope,   814. 
Washburn    v.    Carthage    Nat.    Bank, 
1435,    1444,    1492. 
v.  Cooke,   247. 
v.  Herrick,    1023,   2848. 
v.  Oliver,  2971. 
Washburne  v.   Langley,   680,    1901. 
Washington  v.  Thomas,  4068,  4152. 
"Washington  Glass  Co.  v.   Benjamin, 

2104. 
Washington  Ins.  Co.  v.  Price,  229. 
Wasserman  v.  Benjamin,  1316,  1351, 

4084,    4150. 
Wassinger  v.   Fennell,   1892. 
Wasson    v.     Hoff,     2092,     2100,     2102, 

3226. 
Waterbury  v.  Delafield,  1701. 
v.  Eldridge,    286. 
v.  Tucker     &     C.     Cordage     Co., 

3020,    3223. 
v.  Waterbury,    1452. 
v.  Waterman,    2553. 
v.  Westervelt,    2966. 
v.  Whitney,  2675. 
Waterbury  Mfg.  Co.  v.  Krause.  2118. 
Water  Com'rs  of  Amsterdam,  Matter 

of,  3667,  3964,  3970. 
Waterman     v.     Shipman,     140,     142, 
3916. 
v.  Whitney,  3798. 
Waters  v.   Curtis,   948. 

v.  Manhattan    Ry.   Co.,   2581. 
v.  Marrin,    1287. 
v.  Shayne,  1779. 
v.  Spencer,   2843,  4129. 
v.  Stewart,    3139. 
v.  Waters,   766,  778,   791. 
Watertown     Bank    &    Loan    Co.    v. 

Mix,  2339,  2340,  2351. 
Watertown  Nat.  Bank  v.  Westches- 
ter County  Water-Works  Co., 
2851. 
Watertown  Paper  Co.  v.  West,  872. 
Waterville  Mfg.  Co.  v.  Brown,  2269. 
Watkins  v.   Abrahams,    2892. 


TABLE  OF  CASES. 


4329 


[REFERENCES   ARE   TO   PAGES.] 


Watkins  v.  Jones,  523,   524. 

v.  Vrooman,   381. 
"Watrous  v.  Lathrop,  3126,  3262. 

v.  Shear,  921. 
"Watson  v.  Benz,  4037,  4040. 

v.  Brennan,   3184. 

v.  Church,    740. 

v.  Coe,   1588,   1600. 

v.  Cooney,    2564. 

v.  Delafield,   1736,   2736. 

v.  Duncan,    2663,   2670. 

v.  Fitzsimmons,  3338. 

v.  Forty-Second     St      &     G.     St. 
Ferry  R.  Co.,  442. 

v.  Fuller,  3188. 

v.  Gardiner,    2984,    3035. 

v.  Hazzard,  63. 

v.  Le  Row,   3138,   3404. 

v.  McGuire,   1283. 

v.  Manhattan  Ry.  Co  ,   939,   2144, 
2153,   2154. 

v.  Morton,   815. 

v.  Nelson.    3841. 

v.  New  York  Cent.  R.  Co.,   2797. 

v.  Phyfe,    1664. 

v.  Rushmore,    1024. 

v.  Scammell,   1598. 
Watson's    Estate,    Matter    of,    473. 
Watt  v.  Healy,  1352. 

v.  Watt,    3631. 
Wattles  v.  Marsh.  1986,  1987. 
Watts  v.  Adler.   957. 

v.  Board    of    Education,    2388. 

v.  Cleaveland,    3116. 

v.  Nichols,  1440. 

v.  Wilcox,   1779,  1782. 
Wattson  v.   Thibou,   1053,   1059. 
Waverlv    Water-Works,    Matter    of, 

15.    2108,   2111,   2121. 
Wavle  v.  Wavle,   2696. 
Wavland  v.  Tysen.  1077,   1078. 
Way  Mfg.  Co.,  John  S.,  v.  Corn,  878, 

1845. 
Wavne   County    Sav.    Bank   v.    Low, 

114. 
Wead  v.  Cantwell,  89. 
Weare  v.    Slocum,    728. 
Weaver  v.  Brydges,  197,  3316. 

v.  Darden,   955. 

v.  Devendorf,    224. 

v.Ely,    3017,    3730. 

v.  Grant,    2321. 

v.  Haviland,    451,    477,    496,    3394. 

v.  Hutchins,  306. 

v.  Toogood,   3144. 
Webb  v.   Clark,    901,   1002. 

v.  Crosby,    3036. 

v.  Dill,   269,   1993. 

v.  .Milne,   276,   3710. 

v.  Mott,    715,  815. 

v.  Norton,    3956. 

v.  Odell,   2291 

v.  Osborne,   3359.   3360. 

v.  Overman,   3351.   3423. 

v.  Rome,   W.   &   O.    R.   Co.,   115. 

v.  Staves.    3386,    3431. 

v.  Vanderbilt,   1011. 

v.  Van    Zandt,   1626. 

v.  Tonkers   R.   Co.,    2266,    2275. 
Webber  v    Herkimer  &  M.  S.  R.  Co 
482. 

v.  Moritz,  1346. 

v.  Reynolds,  2735. 


Webber  v.  Truax,  206. 

Webbers'  Ex'rs  v.  Underhill,  2071. 

Weber,    Matter   of,    2072. 

Weber  v.  Bank  for  Savings.  1863. 

v.  Germania  Fire   Ins.   Co.,   2291. 

v.  Hearn,   2566. 

v.  Huerstei,    904. 

v.  Kingsland.    1768,   1810,   2288. 

v.  Weber,    2708,   3061,   3274,    3300. 
Webster  v.  Bond,  422. 

v.  Cole,   2207,    2723. 

v.  Fitchburg  R.   Co.,    871. 

v.  King's      County      Trust      Co., 
2094,  2666. 

v.  Lawrence,   1415. 

v.  Sawens,    3281,    3282. 

v.  Stevens,  3766. 

v.  Stockwell,  1779. 
Weed  v.  Bergstresser,   1990. 

v.  First  Nat.   Bank,    4128. 

v.  Jackson,   3133. 

v.  Paine,    2050,    2902,    3000. 

v.  Roberts,  1565. 

v.  Saratoga    &    S.     R.    Co.,    704, 
1020. 

v.  "Weed,   3168. 
Weehawken  Wharf  Co.  v.  Knicker- 
bocker  Coal   Co,    1434,    1521,    1525, 
3598. 
Week  v.  Keteltas,  77. 
Weekes    v.    Garvey,    2953. 

v.  McCormick.    1919. 
Wxeeks  v.  Coe,  3651,  3686,  3691,  3692. 

v.  Cornwell,  3613. 

v.  Hart,   2358.   2661. 

v.  Lowerre,    1768. 

v.  Merritt,   2S2  J. 

V.  O'Brien,    852,    983,    1008,    1044, 
1082,  1083. 

v.  Silver    Islet    Consol.    Min.     & 
Lands   Co.,    3010. 

v.  Southwick,    1606. 

v.  Tomes,   705,   3237. 

v.  Van  Ness,   4169. 

v.  Weeks,  1645,  1651. 
Wegman  v.  Childs,  3373. 
Wehle   v.    Bowerv   Sav.    Bank,    3033. 

v.Butler.    1543,    1546,    154S,    3193. 

V.Conner,    292,    1415,    1469,    1471, 
1473,   1480,   3117,   3917. 

v.  Haviland.   2342. 

v.  Loewy,    1067. 

v.  Spelman,    1546. 
Weiant     v.      Rockland     Lake     Trap 

Rock  Co.,   1938,   2374. 
Weichsel  v.  Spear,  923. 
Weidenfeld   v.   Woolfolk,    2560. 
Weigand  v.  Sichel,  9 
Weigley  v.  Kneeland,  2312. 
Weil,  Matter  of,   1785. 
Weil   v.   Auerbach,   1565. 

v.  Galium,    1468,    1470. 

v.  Kempf,   3776. 

v.  Martin,    716. 

v.  Unique  Blec.   i>*'vice  Co.,  4105. 
Weiler   v.    Mooney,   876. 
Weill  v.   Metropolitan  Ry.  Co.,  1030. 

v.  Weill,   294,   3042. 
Weiller  v.  Schreiber,   1393,   1401. 
Weinberg1  v.   Frank,    3915. 
Weinberger    v.    Metropolitan    Trac- 
tion Co.,    2571. 
Weinman   v.   Dilger,   3839. 


4330 


TABLE  OF  CASES. 


[REFERENCES   ARE   TO   PAGES.] 


Weinstein  v.  Frank,  1875. 
Weir  v.  Slocum,  242,  720. 
Weiser  v    Kling,    3427 
Weiss  v.   Ashman.  o26b,  3.5U.S. 

v.  Morrell,  1G66,  1681,  2967. 
Weitkamp  v.  Loehr,  1395. 
Welch,  Matter  of,   2768,   3781. 
Welch  v.  Bogert,  1894. 
v.  Gaffney,   1S95. 
v.  Hazelton,  51. 
v.  James,  3145. 
v.  Preston,  2611. 
v.  Seligman,   44. 
v.  Winterburn,  1281,   1345. 
v.  Woodruff,  3131. 
Weld,   Matter  of,   3338. 
Wold  v.  Reilly,  1091,  2317. 
Welde  v.  Henderson,   715. 
Weldon  v.  Brown,   2154. 

v.  De   Lisle,    3833.  oooA 

v.  Third  Ave.   R.  Co.,  2251,   2330. 
Welker  v.  Allen,   4021. 
Weller    v.    J.    B.    Pace    Tobacco   Co., 

I412-  „„„H 

Welles  v.  Thornton,   2831. 

v   writes     4T2. 
Welling"   v.    Ivoroyd   Mfg.    Co.,    2922, 
9923 
v.  Judge,"  2330,  2337. 
v.  Sweet,   1948. 
Wellington   v.    Claason,    804,    211b. 

v.  Merry,   1285. 
Wellman  v.  Frost,   3040,   3044. 
Wells  v.  Betts,  1091. 

v  Corn   Exch.   Bank,   1869,    4148. 

v.  Cruger,   809. 

v.  Danforth,    3666. 

v.  Dawson,  4007. 

v.  Garbutt,  3867. 

v.  Higgins,    2345. 

v.  Hub   Pub.    Co.,    1764. 

v.  Jones,    1352. 

v.  Kelsey,  2250. 

v.  National   City   Bank,    1861. 

v.  O'Connor,    3411. 

v.  Selling,  1290. 

v.  Smith,   2761. 

v.  Van    Aken,    858,    859,    870. 

v.  Vanderwerker.    2812. 

v.  Watertown      Fire      Ins.      Co., 

Wells,  Fargo  &  Co.  v.  Wellsville,  C. 

&   P    C.   R.   Co.,   3604,   3800,   3853. 
Welsbach    Co.    v.    Norwich     Gas    & 

Elec.  Co.,   4103. 
Welsh  v.   Cochran,   3089,    3193. 
v.  Darragh,    2563,    2566. 
v.  Fallihee,   2908. 
V.Manhattan  El.   R.  Co.,  2382. 
v.  Schoen,   3238. 
Weltman  v.  Posenecer,  1880,  2918. 
Wemple  v.  Glavin,   1379. 
Wemyss  v.  Allan,  1874,  18  i  5. 
Wendell   v.   Shaw,   3411. 

v.  Wendell.   2928. 
Wendling  v.  Pierce,  845. 
Wendover  Ave.,  Matter  of,  621. 
Wendt  v.  Peyser    888. 
Wenk    v.    City    of    New    York,    958, 

4091,    4109.  m 

Wenstrom     Elec.     Co.     v.     Bloomer, 

1861.  „„.. 

Wentworth   v.   Buhler,    2244. 


Wentworth  v.  Candee,  2744. 
Wenzel   v.    Murphy,    2118. 
Wenzell  v.   Morrisey,    1383. 
Werbelovsky   v.   Michael,    4135. 
Werbolowsky  v.  Greenwich  Ins.  Co., 

1994,  1995. 
Werner  v.  Braunstein,  2318. 

v.  Franklin      Nat.      Bank,      863, 

3010. 
v.  Hearst,    4120. 
v.  Interurban    St.    Ry.    Co.,    2701, 

2702. 
v.  Tuch,    2010,    3751. 
Wersebe    v.    Broadway    &    S.    A.    R. 

Co.,  2318,   2320. 
Wertheim  v.  Clergue,  131. 

v.  Continental  Railway  &  Trust 
Co.,    1972. 
Wertheimer    v.    Independent    Order, 

Free  Sons  of  Judah,  1861. 
Werthim  v.  Page,  960,  1796. 
Weseman    v:    Wingrove,    3243,    379<J, 

3801. 
Wesley  v.  Bennett,   3040. 
Wesselman   v.   Stuart,    2115. 
Wessels   v.   Boettcher,   1440,   1915. 

v.  Carr,    1001,    2967,    2973. 
Wessen  v.  Chamberlain,   3211. 
v.  Chapman,   3227. 
v.  Judd,  950. 
West  v.  American   Exch.   Bank,   910, 
943. 
v.  Bacon,  292,  305. 
v.  Banigan,    2317. 
v.  Brewster,    870. 
v.  City   of  Utica,  2929. 
v.  Crosby,  206. 
v.  Kurtz,   264. 
v.  Lynch,   3948. 
v.  Place,  3719 
Westbrook  v.   Dubois,   2586. 
Westchester,    Town    of,    v.    Hender- 
son,  2566. 
Westcott  v.   Fargo,    956. 

v.  Thompson,    2674,    3828. 
West    End    Sav.    &    Loan    Ass'n    v. 

Niver,  1071. 
Westerfleld,    Matter    of,    3621 
Westerfield    v.     Rogers,     3850,     3880, 

4056.  ,,   ^    _         _, 

Western  v.    Genessee   Mut.    Ins.   Co., 
2314. 
v.  Romaine,   110. 
Western  Bank  v.   Sherwood,   408. 
Western  Nat.  Bank  v.  Faber,  116.  _ 
Western   Union    Tel.   Co.   v.   Electric 

Light   &  Power  Co.,    4170. 
Westervelt     v.     Agrumana     Sicuia, 
Societa  Anonima  Di  Trans- 
port! Marittimi,  1443. 
v.  Burns,   2273,    2275. 
v.  Gregg,   1883. 
v.  Levy,   50.  „„„„ 

v.Marino,    1500,    1502,    1969. 
v  New  York   Times  Co.,   4125. 
v.  Phelps,    1408,   2299. 
v.  Pinckney,   3116. 
v.  Westervelt,   2288. 
Westfall   v.   Westfall.    459     472. 
Westheimer  v.   Schultz,   1572. 
Westinghouse,    Church     Kerr   &   Co. 
v.  Remington  Salt  Co.,  4117. 
v.  Wyckoff,   4072. 


TABLE  OF  CASES. 


4331 


[REFERENCES   ARE   TO   PAGES.] 


Westlake    v.    St.    Lawrence    County 

Mut.   Ins.   Co.,    2370. 
Weston  v.  Citizens'   Nat.   Bank,  732, 
4139. 

v.  Conant,  1408. 

v.  Goldstein,   1563. 

v.  McCormick,    2874. 

v.  New  York  El.  R.  Co.,  2704. 

v.  Reich,  1781. 

v.Stoddard,    2166,    2910. 

v.  Watts,    1642,    1658. 
West    Philadelphia    Bank    v.    Gerry, 

2836. 
West    Side    Bank    v.    Pugsley,    237, 

3333. 
West  Side  Elec.  Co.   v.  Consolidated 

T.  &  E.  S.  Co.,  4134. 
West  Side  Elec.  Light  &  Power  Co., 

Matter  of,  3134. 
"West  Troy  Nat.  Bank  v.  Levy,  3387. 
Westurn's  Estate,  Matter  of,  3975. 
Wetmore  v.  Bruce,   3864. 

v.  Candee,   3414. 

v.  Earle,   1305. 

v.  Hegeman,  265,  1812. 

v.  Law,    2817. 

v.  Porter,   1000,    1002. 

v.  Wetmore,       644,       2606,       3299, 
3402-3404,    3425,    3614,    3843. 
Wetter  v.    Erichs,   3789,   3804. 

v.  Schlieper,    1639,    2605. 
Wettig  v.   Moltz,   2829. 
Wetven    v.    Fick,    4072,    4073,    4078, 

4089. 
Weyman      v.      National      Broadway 

Bank,  2771. 
Whalen    v.    Albany    County.    Sup'rs, 
2554,    2589. 

v.  Tennison,  3264. 
Whaley  v.   Citv   of  New  York,   4117. 
Wharton   v.   Barry,   563. 
Whatling  v.  Nash,  64. 
Wheat  v.   Rice,    382,   3650. 
Wheaton  v.  Fay,  689. 

v.  Newcombe,    259. 
Whedon  v.  Champlin,  1477. 
Wheeler  v.   Bowery  Sav.   Bank,   207. 

v.  Brady,   644,    1293,   1342. 

v.  Chesley,    893. 

v.  Cropsey,  1420,   1421. 

v.  Emmeluth,   583. 

v.  Falconer,      626,      2567,      2573, 
3S01. 

v.  Frenche,   1290. 

v.  Gilsey,   334,    1588. 

v.  Gleason,    69. 

v.  Hall,    1029. 

v.  Hartwell,    1306. 

v.  Heermans,   3044. 

v.  Lampman,    812. 

v.  Lawson,  3101. 

v.  Lozee,    1978,    3029. 

v.  McCabe,    3776. 

v.  McFarland,  3114. 

v.  Millar,    825,    3764. 

v.  Mowers,   4035,   4040. 

v.  Ruckman,      2280,      2982,      2984, 
3029,   3862. 

v.  Scully,  762,  920. 

v.  See,  2273. 

v.  Smith,  3107. 

v.  Spinola,   462. 


Wheeler  v.  Sweet,  2339,  2344. 

v.  Tracy,   3604. 

v.  VanKuren,    125. 

v.  Westgate,   2900,   2977. 

v.  Wheeler,   2010. 

v.  Wilcox,   248,   674,   1360. 

v.  Wright,   2947. 
Wheeler   &   W.    Mfg.    Co.   v.   Jacobs, 

2039. 
Wheelock   v.    Hotchkiss,    2993,    3959. 

v.Lee,    356,    816,    832,    1013,    1018, 
2144,    2146,    2153,    2155,    2765. 

v.  Noonan,   1091. 

v.  Stewart,   1285. 

v.  Tanner,   2010. 
Whelpley  v.  Van  Epps,  894. 
Whipple  v.   Foot,  3105,  3106. 

v.  Ripson,    3800. 

v.  Williams,  598,   2936. 
Whitaker  v.  Desfosse,  625,  2560. 

v.  Merrill,   1530. 
Whitbeck   v.   Kehr,    1085. 

v.  Rowe,    3223. 
Whitcomb  v.  Hungerford,  1033. 

v.  Salsman,    1290. 

v.  Whitcomb,    383. 
White,    Matter    of,     159,    1721,    1776, 

3595,    3615,    4083. 
White  v.   Angel,   1920. 

v.  Anthony,   3952. 

v.  Balta,    3705. 

v.  Bennett,    1080. 

v.  Blake,    1365. 

v.  Bogart,    789,    1991. 

v.  Boice,   1666. 

v.  Calder,  2352,  3595. 

v.  City   of  New  York,   1022. 

v.  Colfax,   1634. 

v.  Coulter,    2556,   3092. 

v.  Cummings,   915,    1093. 

v.  Drake,   829. 

v.  Frankel,    1641. 

v.  Goodson  Type  Casting  &  Set- 
ting Mach.  Co.,  1390. 

v.  Hall,    1957. 

v.  Hess,   537. 

v.  Inebriates'    Home    for    Kings 
County,    1559. 

v.  Jackson,   4117. 

v.  Jov,   922,  923,   1005. 

v.  Kidd,    1078. 

v.  Koster,   959,   1063,   1065. 

v.  Lovejoy,    3088. 

v.  Low,   923. 

v.  Munroe,  641,  642. 

v.  Price,    495. 

v.  Reichert,    1445. 

v.  Rintoul,   673,    679. 

v.  Rodemann,    21,    1063,    1091. 

V.  Smith,    914,    1924,    2035,    2374, 
2599. 

v.  Sumner,   293,   299. 

v.  Talmage,    957. 

v.  Town   of   Ellisburgh,    2707. 

v.  West,    865. 

v.  Whiting,   42. 
White,  Corbin  &  Co.  v.  Jones,  2733^ 

2734. 
White's    Bank   of   Buffalo    v.    Farth- 
ing, 3412,  3426,  3427. 
White's   Will,    Matter   of,    3990. 
Whitehead  v.  Kennedy,  3900,  3906. 


4332 


TABLE  OF  CASES. 


[REFERENCES    ARE   TO   PAGES.] 


Whitehead  v.  Pecare,  2825. 
Whitehead  Bros.  Co.  v.  Smack,  1035. 
Whitolegge  v.  De  Witt,  1514,  2906. 
Whiteman  v.  Leslie,    3953. 
Whiteside  v.    Noyac   Cottage   Ass'n, 
1609,    1612,    1614. 

v.  Prendergast,    1653,    1657. 
Whitfield    v.    Broadway    &    S.    A.    R. 

Co.,   3711. 
Whithers   v.   Toulmin,    860. 
Whiting  v.   Barrett,   1423. 

v.  Citv  of  New  York,  1016,  3898. 

v.  Dowdall,    27  67. 

v.  Edmunds,    464. 
Whiting-ham  v.  Darrin,  4048 
Whitlatch    v.    Fidelity    &    Casualty 

Co.,  2337. 
Whitlock   v.    Roth,    542. 
Whitman  v.   Foley,   2272,   3714,    3932. 

v.  Haines,    336,    625,   627. 

v.  James,  3206. 

v.Johnson,    627,    635,    2342,    3682. 
Whitmarsh  v.   Angle,    1430. 
Whitner  v.  Perhacs,  62,  840. 
Whitnev  v.  Belden,   623. 

v.  Cooper,    2946,    2948. 

v.  Crim,    2351. 

v.  Davis,   1494,   1495. 

v.  Deniston,    1455. 

v.  Haggerty,  660. 

v.  Hirsch,    1391,   1392,   1393,   1524, 
1848. 

v.  Hoffstadt,    1322. 

v.  Kenyon,    2891. 

v.  New      York       Casualty       Ins. 
Ass'n,   249. 

v.  Roe,   2962,   2986. 

v.  Rudd,   4143. 

v.  Townsend,     2782,     2795,     3685, 
3940. 

v.  Welch,  3347. 

v.  Wenman,   4113. 

V.Whitney,  2025,  2156,   2738. 

v.  Wyncoop,    1744,    1755,    1761. 
Whiton    v.    Morning   Journal    Ass'n, 

762-  776-  „    TT    ~ 

Whittaker  v.   Delaware  &  H.   Canal 

Co.,  2342,   2343. 

v.  Eighth  Ave.    R.   Co.,    1041. 

v.  New  York  &  H.  R.  Co.,   295. 
Wrhittemore     v.      Judd     Linseed     & 

Sperm  Oil   Co.,   1034,   1041. 
Written  v.  Fitzwater,  2341,  2342. 
Whittier  v.   Bates,    837. 
Whittlesev  v.   Delaney,   2143. 
W    H.    Sawyer  Lumber   Co.    v.   Bus- 
sell,    1442. 
Whyte  v.  Denike,  3367,  3369. 
Wiberg  v.  Nassau  Elec.  R.  Co.,  2256. 
Wice   v.    Commercial    Fire    Ins.    Co., 

93,   2043,   2047,   3769. 
Wichman  v.   Aschpurwis,    775. 

v.  Ft.  Plain  &  R.  S.  R.  Co.,  3764. 
Wicker  v.   Dresser,   235,   237. 

v.  Harmon,    1322. 

v.  Village     of     Elmira    Heights, 
1438,    1896,   1897,   1899. 
Wickes  v.  Dresser,   320,  619. 

v.Harmon,    1322,    1348. 
Wickham  v.  Frazee,  2559. 

v.  Seely,   2909. 

v.  Stern,  1384. 


Wickham  v.  Weil,  980. 
Wicks    v.    Thompson,    2369. 
Widmayer,   Matter  of,   3987. 
Wiechors     v.     New     Home     Sewing 

Mach.  Co.,   1791. 
Wiedersum  v.  Naumann,  286,  3231. 
Wiegand   v.   Fee   Bros.   Co.,   2356. 
Wiegel  v.  Mogk,  1028. 
Wiegmann   v.  Morimura,   1545,   3089. 
Wiener  v.  Morange,   3718. 
Wierichs  v.  Innis,   2672,  2673. 
Wies  v.  Fanning,  846. 
Wiggin    v.    Phelps,    1961. 

v.  Woodruff,   1546. 
W7iggins  v.  Downer,  2340,  2735. 

v.  Richmond,   718,   721. 
Wight  v.  Alden,   2813. 

v.  Bennett,  2871. 
Wightman   v.   Clapp,    4015. 
Wilber  v.  Baker,   300. 
v.  Sisson,   3919. 
v.  Williams,   3022. 
Wilbur    v.    Gold    &    Stock    Tel.    Co., 
1055. 
v.  White,   1894. 
v.  Wiltsey,    3946,    3947. 
Wilcox   v.    Daggett,    2112. 
v.Dodge,    1742. 
v.  Fitch,   484. 
v.  Hawley,       1420,       2663        2788, 

3792. 
v.  Howe,   1429,   3194. 
v.  Howland,   574,   577. 
v.  Joslin,    2704,    2706. 
v.  Nat.    Shoe    &    Leather    Bank, 

1634. 
v.  New    York,    L.    E.    W.    R.    Co., 

2^83 
v.  Stern,'l735,   1738. 
v.Wilcox,   159. 
Wilcox  Silver  Plate  Co.   v.   Barclay, 
2706. 
v.  Green,  2322. 
Wilcox  &  Gibbs  Sewing  Mach.  Co.  v. 

Kruse  &  Murphy  Mfg.   Co.,  142. 
Wild  v.  Porter,   2884. 
Wilde  v.  Joel,    1612,    1614. 
Wilder  v.   Ballou,    503. 
v.  Boynton,   2109. 
v.  Clark,    3262. 
v.  Fondev,    2880. 
v.  Peabody,   2256,   2258. 
v.  Seelye,  2011. 
v.  Stewart,    1428. 
v.  Wheeler,    2981,    3037. 
Wildman  v.  Gelder,   1399. 
Wildrick  v.  De  Vinney,  1423. 
Wilds,   Matter   of,   2074,   2078. 
Wilds  v.  Hudson  River  R.  Co.,  2338. 
Wile  v.  Brownstein,  28,   45. 
Wileman  v.  Metropolitan  St.  R.  Co., 

2046. 
Wiles  v.  Suydam,   66,  69,  75,  76,   999. 
Wiley  v.   Brigham,   2597. 

v.  Long  Island  R.   Co.,   3022. 
v.  Rooney,    2728,    2745. 
v.  "Village  of  Rouse's  Point,  959, 
1003,    1011. 
Wilgus    v.    Bloodgood,    3064,    3078. 
Wilkes,   Matter   of,    325. 
Wilkes    v.   Harper,    2797. 
v.  Rogers,   2637. 


TABLE  OF  CASES. 


4333 


[REFERENCES   ARE   TO   PAGES.] 


Wilkes  v.  Wilkes.  2044. 
"Wilkie  v.  Chadwick.   1980. 

v.  Moore,   1S4S. 

v.  Rochester    &    S.    L.    Ry.    Co., 
1572,   1599. 
Wilkiming  v.   Sehmale,   93. 
Wilkin   v.   Gilman,   893,   897,   901. 

v.  Raplee.    2901. 
Wilking   v.    Richter,    947. 
Wilkins     v.     Beadleston     &    Woerz, 
2027,  2029,  2032. 

v.  Buck,    2593. 

v.  Earle,   3923. 

v.  Nassau     Newspaper    Delivery 
Exp.   Co.,    4161. 

v.  Williams,   2913. 
Wilkinson    v.    First    Nat.    Fire    Ins. 
Co.,   503. 

v.  Gill,   40. 

v.  Johnson,   169S. 

V.  Paddock,      2799,      2S07,      3140, 
3417. 

v.  Tiffanv,    3009.    3025. 
Wilkie  v.    Chadwick,   355. 
Wilklow  v.   Lane,   462. 
Willard    v.    Doran    &    Wright    Co., 
2566. 

v.  Judd,    549. 

v.  Press  Pub.  Co.,  2341. 

v.  Reinhardt,    81. 
Willet  v.   Equitable  Ins.   Co.,   1410. 

v.  Faverweather,    640. 

v.  Lassalle,    1356,    135S,    1373. 

v.  Stewart,  794,  930. 
Willets  v.  Haines,  4102. 
Willett  v.   Scovil,  1615. 

v.  Stringer,   1600,   3770. 
Willey  v.   Shaver,    2938. 
William     H.     Frank     Brew.     Co.     v. 

Hammersen,    1089. 
Williams,   Matter   of,    39S0. 
Williams    v.     Aetna    Life    Ins.    Co., 
1860,   1867. 

v.Allen,    881. 

v.  Ayrault,    128. 

v.  Baldwin,  2733. 

v.  Birch,    1036. 

v.  Blumer.   2932. 

v.  Boyle,  1014. 

v.  Brooklyn     El.     R.     Co.,     2304, 
2305. 

v.  Buffalo,   2940. 

v.  Cassady,    3033. 

v.  City  of  Rochester,  35. 

v.  Clarke,   4110. 

v.  Colwell.    778,    3140,    3217. 

v.  Davis,   879. 

v.  Delaware,    L.     &    W.    R.    Co., 
2287,   2320.    2695,   3840. 

v.  Eldridgo.      17  14.      1754,      1758, 
1759,    1766. 

v.  Empire   Woolen   Co.,    901. 

v.  Estate  of  Cameron,  17,   88. 

v.  Fitch,   3957. 

v.  Fitzhugh,    128. 

v.  Folsom,    869,    1066,    1067,    1068, 
1798,  1800. 

v.  Foster,    1779. 

v.  Freeman.    3272. 

v.  Guile.   2286. 

v.  Hays,    1055.    1922. 

v.  Hernon,    1051,    2890. 

v.  Hogeboom,    3097,    3398. 


Williams  v.  Huber,  639.  1559. 

v.  Ingersoll,  52,  289,  292,  303, 
1091,   1410. 

v.  Irving,    3300. 

v.  Kiernan,   3023. 

v.  Kilpatrick,    989. 

v.  Kulla,   1523. 

v.  Lindblom,     947,     2676,     3619. 

v.  Macdonald,    1705. 

v.  Mechanics'  &  T.  Fire  Ins.  Co., 
2368. 

v.  Metropolitan  Life  Ins.  Co., 
2253. 

v.  Montgomery,    1606,    3856. 

v.  Murray,   624. 

v.  Riel,   894. 

v.  Rightmyer,   1446. 

v.  Roblin,    4051. 

v.  Rogers,    1332,    3185. 

v.  Sage,   2599. 

v.  Shelly,   3102. 

v.  Sholto,  2848. 

v.  Slote,   928. 

v.  Spencer,    1338. 

v.  Syracuse  Iron  Works,  2292. 

v.  Taylor,    491. 

v.  Thorn,    3402,    3403,    3410,    3425. 

v.  United  States  Mut.  Ace.  Ass'm 
1035. 

v.  Vanderbilt,    2693. 

v.  Van    Valkenburg,    735. 

v.  Village  of  Port  Chester,  4051. 

v.  Waddell,   1523. 

v.  Welch,   359. 

v.  Western  Union  Tel.  Co.,  580, 
1564,  1602,  1792,  1808,  2999, 
3009,  3012,  3014,  3018,  3022, 
3023,   3653. 

V.  Wilkins,  1880. 

v.  Wilkinson,   1044. 

v.  Williams.     990,     1005,     3230. 

v.Willis,  988.   2355,   2361,  3908. 

V.  Wilson,   298. 
Williamson  v.  Carlton,  280. 

v.  Field,    3S68. 

v.  Field's  Ex'rs.  3233. 

v.  Moore,    2093. 

v.  Standard  Structural  Co.,  1688. 

v.  Wager.   4090,    4091,   4092,   4101. 

v.  Williamson,    764. 
Williard  v.   Strachan,   2923. 
Willink  v.    Reekie.    29S1,   302S. 

v.  Renwick,     626. 
Willins  v.   Wheeler,    4009    4010. 
Willis  v.  Bailev,  871. 

v.  Chipp,    959. 

v.  Corlies,    1624. 

v.  Forrest,    2209. 

v.  McKinnon.  954. 

v.  Moore,  3398. 

v.  Sharp.    10  It. 

v.  Taggard.    962. 

v.  Underhill,  987. 
Willmont  v.  Meserole.   688,   1903. 
Willover     v.     Fi*st     Nat.     Bank     of 

Olean,  2938 
Willson  v.  Ellis,   1430. 

v.  Eveline,  1901. 
Wilmordings    v.     Fowler,     286,     327, 

3834. 
Wilmont  v.  Meserole,   1790. 
Wilmore   v.   Flack,    1013,    3619,    3725. 
Wilshire  v.  Manning,   305. 


4:?34 


TABLE  OF  CASES. 


[REFERENCES    ARE    TO    PAGES.] 


Wilson    v.    Abrahams,  2700,   2760. 

v.  Allen,     678,     2391,     2976,     3711, 
3764. 

v.  Andrews,    3309,   3346.' 

v.  Barney,    630,    1639. 

v.  Bennett,   889,   901. 

v.  l'.ctts.    3S63. 

V.  Blanco,  733. 

v.  Brentwood    Hotel  Co.,   744. 

V.  Britton,    1402. 

v.  City    of   New    York,    996. 

v.  Coulter,  2329. 

v.  Davol,  3160. 

V.  Dickel,    2325. 

v.  Doran,    2009,    2013,    2015. 

v.  Drever,    1607. 

v.  Duncan,    1869,    3632. 

v.  Eastman    &    Mandeville    Co., 
1077. 

v.  Ellwood,    2230,    4019. 

V.  Field,   1329,  1331. 

v.  Forsyth,  2151. 

v.  Fowler,    879. 

v.  Grant,    3741,   3757. 

v.  Greig,    329. 

v.  Harter,    2084. 

v.  Harvey,  1391. 

v.  Jenkins,    356. 

v.  Kings   Co.    El.    R.   Co.,    2595. 

v.  Knapp,    2618. 

v.  Lange,   4086. 

V.  Lawrence,  138,  139,  1050,  1869. 

v.  McGregor,    2915. 

v.  Mackenzie,    139,    144. 

v.  Marsh,   56. 

v.  Mechanical      Orguinette      Co., 
3899 

v.  Nassau   Elec.    R.    Co.,    2270. 

v.  Palmer,    3686,    3694,    3918. 

v.  Press   Pub.   Co.,   1083. 

v.  Robinson,  1010. 

v.  Ryder,   1375. 

v.  Simpson,   2783,  3682. 

v.  Smith,    3191. 

v.  Standard  Asphalt  Co.,   4120. 

v.  Steers,   2267. 

v.  "Wetmore,    585. 

v.  "Wilson,  1638. 
"Wilson    Bros.    Woodenware    &    Toy 

Co.  v.  Daggett,   3322. 
Wilson    Printing    Ink    Co.    v.    Ford, 

2009. 
Wrilson    &    Adams    Co.    v.    Schorpp, 

2642. 
Wiltsie  v.  Beardsley,  76. 

v.  Northam,   51,   973. 

v.  Wiltsie,   531. 
Wimmer  v.  Metropolitan  St.   R.   Co., 

2262    4160. 
Winans,  Matter  of  1424. 
Wrinans  v.  Demarest,   2270. 

v.  Mason,    308. 

v.  Winans,  2104,  2105,  2106,  2147, 
2149. 
Winants   v.   Blanchard,    2946. 
Winch    v.    Farmers'    Loan    &    Trust 

Co.,   905. 
Winchell    v.    Hicks,     518.     519,     520, 
525,    528,    530,    2294,    2347. 

v.  Latham,    2693. 

v.  Martin,  873. 


Winchester  v.   Brown,   1908. 

v.Browne,     131,     839,     989,     991, 
1905. 
Windecker    v.    Mutual  Life  Ins.    Co., 

991,   1860,  1869,  2926. 
Winebrener   v.    Johnson,    3069,    3186. 
Winegard  v.   Fanning,   2259. 
Wines  v.  City  of  New  York,  3854. 
Winfield   v.    Bacon,    1649. 

v.  Potter,    2290. 

V.  Stacom,    2634. 
Wing  v.    Bull,    999. 

v.  Cornell,   2021. 

v.  De  La  Rionda,   267,   467,   2092, 
3001,   3226. 

v.  Disse,    3361,    3376. 

v.  Ketcham,    2076. 

v.  Rogers,    3774. 
Wingert  v.   Krakauer,   3696. 
Wingrove    v.     German     Sav.     Bank, 

633. 
Winne  v.  Brundage,  2335. 

v.  Fanning,  3006,  3022. 

v.  Hills,   3867. 

v.  Niagara  Fire  Ins.  Co.,   404. 
Winnebrenner     v.     Edgerton,     2885, 

2891. 
Winner   v.    Lathrop,    2245. 
Winslow  v.  Carthage,  W.  &  S.  H.  R. 
Co.,    2020. 

v.  Ferguson,    1076. 

v.  Pitkin,  3399. 

v.  Staten    Island    Rapid    Transit 
R.   Co.,  742. 
Winstein  v.  Frank,  1874. 
Winston   v.   Winston,    2106. 
Winter  v.  Crosstown  St.  R.  Co.  2652. 

v.  Eckert,   3227,   3230. 

v.  Hamm,    204. 

v.  Williamsburgh      Sav.      Bank, 
2300. 
Winters  v.  King,  2074. 

v.  McMahon,  2268,  4019. 
Winterson  v.  Hitchings,  3134. 
Winterton  v.  Winterton,  520. 
Wintjen  v.  Verges,  358. 
Wintner    v.    Rosemont    Realty    Co., 

4061. 
Winton  v.  Livey,  1370. 

v.  Winton,  3044. 
Wintringham  v.  Whitnev,   985,  1003. 

v.  "Wintringham,  2822,  2890. 
W^ireman      v.      Remington      Sewing 

Mach.  Co.,  1705. 
Wirgman  v.  Hicks,  1079,  1080. 
Wisconsin    Marine    &    Fire    Ins.    Co. 

Bank  v.  Hobbs,  1884. 
Wise  v.  Gessner,  1025. 

v.  Grant,   1406. 

v.  Phoenix  Fire  Ins.  Co.,   2239. 
Wisner,  Matter  of,  552,  557. 
Wisner    v.    Consolidated    Fruit    Jar 
Co.,   1001. 

v.  Ocumpaugh,  2766. 
Wisser  v.  O'Brien,  3865. 
Witbeck  v.  Holland,  2313. 

v.  Waine.  2679. 
Witcher  v.  Tribune  Ass'n,  1777. 
Witherbee  v.  Meyer,  59. 

v.  Taft,  2680. 

v.  Witherbee,  1648. 


TABLE  OF  CASES. 


4335 


[references  are  to  pages.] 


Witherhead  v.   Allen,  234,   1000. 
Witherow  v.  Slayback,  2268. 
Withers  v.  Toulmin,  878. 
Witherspoon  v.  Van  Dolar,  234. 
Witkowski  v.  Paramore,  877. 
Witler  v.  Brewster,  2051. 
Witmark,  Matter  of,  3983. 
Witmark  v.  Herman,  1291. 

v.  Perlev,  4064,  4156. 
Witmer,  Matter  of,  184. 
"Witowski  v.  Maisner,  2027. 
Witte,  Matter  of,   3368. 
Wittleder    v.    Citizens'    Electric    Il- 
luminating' Co..   232,   2338,  3624. 
Wittner  v.  Von  Minden,  1393. 
Woelfle  v.   Schmenger,  1991. 
Woerishoffer   v.   North   River  Const. 

Co.,  1599,  1641. 
Woez  v.  Herrman,  1303. 
"Wohlfahrt  v.  Beckert,  2287. 
Wohltman  v.  Goff,  2120,  1044. 
Wokal  v.  Belsky,  393. 
Wolcott  v.  Holcomb,  2944,  2948. 

v.  Schenk,  4025. 
Wolf,  Matter  of,  284,   287. 
Wolf  v.  Buttner,  3336,  3640. 

v.  Di  Lorenzo,   2941,   3036. 

v.  Farley,  1421. 

v.  Goodhue    Fire    Ins.    Co.,    2354, 
2694,  2697. 

v.  Horn,  3S67. 

v.  Third  Ave.  R.  Co.,  3861. 

v.  Trochelman,  278. 
Wolfe,  Matter  of,  1368. 
Wolfe  v.  Brouwer,   1286,   1343. 

v.  Horton,  1664,   2862. 
Wolff  v.  Houston,  W.  S.  &  P.  R.  Co., 
1897. 

v.  Kaufman,   863,  871,  874. 

v.  Moses,  2914. 
Wolford    v.    Oakley,    91,    92,    93,    611, 

706,  2044. 
Wolliung  v.  Akin,  196. 
Wolstenholme  v.  Wolstenholme  File 

Mfg.  Co.,  3900. 
Wood,  Matter  of,  3617. 
Wood  v.  Anthony,  1087. 

v.  Baker,  468. 

v.  Blodgett,  1898. 

v.  Bodine,  1477. 

v.  Brown,  4035. 

v.  City  of   New   York,   981,    1072, 
2158,  2839. 

v.  Colvin,    3129,    3140,    3149,    3181. 

v.  Commissioners    of    Excise    of 
Randolph,    2993,    3959,    3963. 

v.  Crowner,  2575. 

v.  Derrickson,  3775. 

v.  Draper,  922. 

v.  E.  &  H.  T.  Anthony  Co..  4044. 

v.  Fisk,  396,  3761. 

v.  Flvnn,  2086. 

v.  Furtick,   806,  1410. 

v.  Gledhill,  864,  868. 

v.  Gordon,   988. 

v.  Harper,  59. 

v.  Henry,  3199. 

v.  Hitchcock.   2010. 

v.  Hollister,  349,   353. 

v.  Holmes,  276. 

v.  Howard  Ins.  Co.,  1738. 


Wood  v.  Kelly,  201,  3764. 
v.  Knapp,  652. 
v.  Knight,  924. 
v.  Kroll,   1912,   2984. 
v.  Lary,  1083,  2380,  3016. 
v.  McGuire,  1042. 
v.  Mitchell,  2882,  2883. 
v.  Monroe  County  Sup'rs,  3903. 
v.  Morehouse,     3076,     3127,     3141, 

3142,  3150,  3158,  3176. 
v.  Nestait,  33,  38. 
v.  New  York  Cent.  &  H.   R.  Co., 

3926. 
v.  Northwestern  Ins.  Co.,  831. 
v.  Orser,   2359. 
v.  Perry,  403. 
v.  Phillips,   2102,   2103. 
v.  Powell,   693,   3375. 
v.  Rabe,  2009,   3164. 
v.  Raydure,    952. 
v.  Richardson,  3664,  3668. 
v.  Seely,  837,  838. 
v.  Sidney     Sash,     Blind     &    Fur- 
niture Co,  3412,  3414. 
v.  Squires,   35. 
v.  Staniels,   951. 
v.  Sutton,  1076. 
v.  Swift,   427,   1921,  2557. 
v.  Trustees    of   Northwest   Pres- 
byterian Church,  1054. 
v.  Whiting,  912. 
v.  Wood,  473. 
v.  Young,   491. 
Woodbridge     v.     First     Nat.     Bank, 
2280,  3017. 
v.  Nelson,  1317. 
Woodburn  v.  Chamberlin,  2290. 

v.  Hyatt,  1574. 
Woodburv  v.  Delap,  77. 

v.  Sackrider,   1005. 
Woodcock  v.  Bennet,  3074,  3149. 

v.  Roberts,  2216. 
Wooden  v.  Strew,  826. 
Woodford  v.  Rasbach,  2648. 
Woodgate  v.  Fleet,  1001,  3139. 
Woodhouse  v.   Duncan,   413,  958. 
Woodhull  v.  Little,  3219,  3238. 
v.  New  York  City,   2676. 
v.  Osborne,   3229. 
Woodin  v.  Bagley,  2957. 
Woodman      v.      Goodenough,      3256, 
3265. 
v.  Penfield,   2239,   3864. 
Woodmanse  v.  Rogers,  1518. 
Woodriff  v.   Hunter,   2204. 
Woodruff    v.    Austin,    732,    813,    814, 
816,  3842. 
v.  Dickie,  2598. 
v.  Fisher,  237,  1575. 
v.  Imperial  Fire  Ins.  Co.,  235. 
v.  Jewett,  1657. 
v.  McGuire,  3208. 
v.  Moore,  529. 

v.  Oswego  Starch  Factory,  34. 
Woods  v.  Armstrong,   3200. 

v.  Board      Sup'rs      of      Madison 

County,  475. 
v.  Buffalo  R.  Co.,   2271. 
v.  De    Figaniere,    363,    370,    1776, 

1807,  1836,  1842,  3336. 
v.  Hart,   2867. 


4336 


TABLE  OF  CASES. 


[  REFERENCES    ARE   TO    PAGES.] 


Woods  v.   Hartshorn,  661. 

v.  Long  Island  R.  Co.,  2347. 
v.  McClure,  4 US. 
V.  Monell,  3142. 
v.  Reiss,  962. 
v.  ROSS,  3316. 
V.  Van  Brunt,  3427. 
v.  Wilder.  831. 
Woodside  v.  Pender,  4013. 
Woods  Motor  Vehicle  Co.  v.   Brady, 

3876. 
Woodward,  Matter  of.  2275. 
Woodward  v.  Frost,  1696. 
V.  Murray,  1419. 
V.  Musgrave,  2571,   2623. 
v.  Mutual  Reserve  Life  Ins.  Co., 

40S8. 
v.  Republic  Fire  Ins.  Co.,   404. 
v.  Schaefer,  2836. 
v.  Skinner,  4140. 
v.  Stearns,  1884. 
Woodworth,   Matter  of,   3657. 
Woodworth  v.  Bellows,   27  61. 

v.  Brooklyn   El.    R.    Co.,    59,    404, 

2921. 
v.  Woodworth,  3132 
Wooley   v.    Grand    St.    &   N.    R.    Co., 

2275. 
Woolf    v.    Barnes,    4049,    4068,    4102, 
4113. 
V.  Jacobs,   3269,   3306. 
v.  Schaefer,  4175. 
Wollett  v.   Seamen's  Bank   for  Sav- 
ings, 1662,  1663. 
Woollev  v.  Newcombe,  830. 

v.  Stevens,  2710. 
Woolsev  v.  Judd.  142. 
v.  Basher,   2294. 
v.  Saunders,  3177. 
v.  Shaw,   1041. 

v.  Trustees    of    Ellenville,    2977. 
AVoolworth   v.   Klock,   4151. 

v  Phoenix    Mut.    Life    Ins.    Co., 

1865. 
v.  Taylor,   3146. 
Woonsocket    Rubber   Co.   v.    Rubber 

Clothing  Co.,  3012. 
Wooster  v.    Bateman,    575,    591,    obi, 
863,   1039. 
v.  Case,   1691-1694,    1697. 
v.  Forty-Second     St.     &     G.     St. 

Ferrv  Co.,   510. 
v.  Wuterich,    3069. 
"Work  v.   Tibbits,   7  06. 
Works  v.   Eggleston,   3935. 
World  Co.  v.  Brooks,  3267. 
Worman  v.  Frankish,   639. 
Wormer  v.  Canovan,  2115. 
Wormser  v.  Brown,  1558,  2381. 

v.  Metropolitan  St.   R.   Co.,   4106, 
4109. 
Worrall  v.  Driggs,   3372. 

v.  Parmelee,  2370,  3861. 
Worster  v.  Forty-second  St.  &  G.  St. 

Ferrv  R.   Co.,   503. 
Worthington   v.   Burdick,    1460. 

v.  London     Guarantee     &    Acci- 
dent  Co.,    199,    3757. 
v.  Warner,   940. 
v.  Worthington,    4090. 
Wortman  v.   Wortman,   123,  775. 
Wotton  v.  Wise,   2341. 


Woven    Tape    Skirt    Co.,    Matter    of, 

142. 
W.  P.  Davis  Mach.  Co.  v.   Robinson, 

1721,   1776. 
Wray    Drug    Co.,    Matter    of,     3952, 

3957. 
Wright  v.   Bennett,   736,   789. 
v.  Bowne,   582,   586. 
v.  Brown,   1289. 
v.  Rurritt,   1937. 
v.  Cabot,   1765,   3327. 
v.  Chapin,   2843,    3715. 
v.  Chase,    196,    2085,    3646. 
v.  City   of  Mt.   Vernon,   2868. 
v.  Columbian   Ins.   Co.,   2055. 
v.  Delafield,   2762. 
v.Douglas,   3870. 
v.  Duffle,    3199. 
v.  Field,   1347. 

v.  Fleischmann,    3003,    3889. 
v.  Forbes,  668. 
v.  Grant,  3212. 
v.  Hicks,    1966. 
v.  Hooker,   3145. 
v.  Jeffrey,    104,    815. 
v.  Jessup,  1744. 
V.  Maseras,    957. 

v.  Nostrand,   256,   630,  1901,   3091, 
3093,    3094,    3187,    3269,    3300, 
3324,    3344,    3347,    3352,    3369, 
3373,   3374,    3594,   3910. 
v.  Paige,  2338. 
v.  Parmenter,   523,  525. 
v.  Reusens,    2977,    2995. 
v.  Ritterman,   45,   48,   1302. 
v.  Robinson   &  Co.,    2009,   2019. 
v.  Rowland,   1529. 
v.  Smith,  2112. 
v.  Strong,    3424. 
v.  Syracuse    B.    &   N.    Y.    R.    Co., 

487. 
v.  Terry,    3837. 
v.  Wright,  298. 
Wright     Steam     Engine    Works     v. 
New     York     Kerosene     Oil 
Engine  Co.,   4146. 
v.  Zimmerman,  1662. 
Wrigley,   Matter  of,   1395. 
Wronkbw  v.  Oakley,  2804. 
Wulff  v.   Cilento,   3712. 
Wunch   v.   Shankland,   2282,   3692. 
Wunsch  v.  Weber,   1822. 
Wuppermann    v.    Valentine,    2132. 
Wurster  v.  Armfield,   4157. 
Wvatt  v.  Brooks,   352,   1931. 
Wyckoff     v.     Anthony,     2007,     2008, 
2011. 
v.  De  Graaf,   2722. 
v.  Devlin,    1887. 
v.  Packard,  737. 
v.  Scofield,    1645. 
Wygant  v.  Brown,  2873. 

v.  Smith,  1423. 
Wylde  v.  Northern  R.  Co.,  423. 
Wyman,    Matter   of,  <3263,  J3296. 
Wyman   v.   Hart,   2347,   313'0. 

v.  Remond,    1024. 
Wvnehamer  v.  People,   2139. 
Wynkoop  v.  Myers,   3306,   3345. 

v.  Van   Beuren,    1595. 
Wynkoop,      Hallenbeck,      Crawford 
Co.  v.  Albany  Evening  Union  Co., 
868. 


TABLE  OF  CASES. 


4337 


[references  are  to  pages.] 


"VVynn    v.    Central    Park,    N.     &    E. 

River  R.  Co.,  2274. 
Wynne  v.  Haight,  2664. 
Wyse  v.  Wyse,  3863. 


Xavier  v.   Oliver,    963. 


Y. 

Tale  v.   Curtiss,   2345. 

v.  Dart,   572,   2292,   2299. 
v.  Gwinits,   2631. 
Yamato      Trading-     Co.      v.     Brown, 

1788. 
Yates,  Matter  of,  2271. 
Yates  v.  Bigelow,  860. 

v.  Blodgett,    715,    1275,    1288. 

v.  Burch,    1014,    3777,    3779. 

v.  Guthrie,  666,  2877. 

v.  Lansing-,   224,   317. 

v.  McAdam,   1662. 

v.  New   York    Cent.    &  H.    R     R. 

Co.,   2691. 
v.  North,    1435. 
v.  St.  John,   3134. 
v.  Stiles,   1678. 
v.  Tisdale,   1864. 
v.  Van   De   Bogert,    463. 
V.  Wing,   440. 
v.  Woodruff,   3220. 
Yates  County  Nat.  Bank  v.   Carpen- 
ter,  1423,   1424,   1430. 
Yates    County    Nat.    Bank    of    Penn 

Yan  v.  Blake,  353. 
Yaw  v.   Whitmore,   2868. 
Yellow  Pine  Co.  v.  Atlantic  Lumber 
Co.,  900,  1438. 
v.  Gutwillig,    2278. 
v.  Lehigh       Valley       Creosoting 
Co.,   2108. 
Yenni,  Matter  of,  286. 
Yeoman     v.     Townshend.     257.     472, 

489. 
Yerkes  v.   McFadden,    1387. 
Yetter,  Matter  of,   3988,   3990. 
Yetter  v.   Westfield,   470,   473. 
Ynguanzo  v.   Salomon,  2317. 
York  v.  Conde,   117. 
Yorks   v.   Peck,    242,    650,    1976,   2926. 
Yorkville    Bank    v.    Henry    Zeltner 

Brew.   Co.,   4087. 
Youker  v.  Johnson,  2916,  2917. 
Youmans   v.   Boomhower,    1423. 
v.  Paine,  855. 
v.  Smith,    247. 
v.  Terry,   3169. 
Young  v.  Brush,  3911,  3913. 
v.  Bush,  2105,   2111. 
v.  Campbell,  1558. 
v.  Catlett,   223S. 
v.  Colby,    680,    3766. 
v.  Conklin,   4018. 
v.  Edwarrls,    838,   928. 
v.  Fox,   3706. 

v.  Fowler,  767,  778,  1575. 
v.  Gregg,   723. 
v.  Heermans,   3417,   3426. 
v.  Howell,   298. 
v.  Johnson,   2194,   2195. 

N.  Y.    Prac— 272. 


loung   v.    Nassau    Electric    R.    Co.. 
1878. 

v.  Roberts,   2298. 

v.  Rondout  &  K.  Gas-Light  Co  , 
1567,   1595. 

v.  Stone,    1543,    2693,    2743. 

v.  Town   of  Macomb,   2300. 

v.  Valentine,  2617. 

v.  Weeks,  1303. 

v.  Young,   2668. 
Youngs  v.   Carter,   157. 

v.  Kent,  1070. 

v.  Klunder,    3297,    3377 

v.  McDonald,    1612,    1614 

v.  Perry,   852. 

v.  Williams,    3125. 

v.  Wilson,    3941. 

v.  Youngs,   2233. 
Yuengling  v.  Betz,   278,  279. 
Yuengling     Brew.     Co.,     Matter     of, 
2075. 


Zabriskie   v.    New   York   Sav.    Bank 
1866. 
v.  Smith,   378,   842,   1002,   2346 
Zacharias   v.    French,    959,    962 
Zafarano  v.   Baird,   2125 
Zapf  v.  Carter,  3922,  3925 
Zapp  v.  Miller,  2573. 
Zarkowski   v.    Schroeder,    35. 
Zebley    v.    Farmers'    Loan    &    Trust 

Co.,   4S9,   1001,   1006,   4114. 
Zeh  v.   Glaskin,    2216. 
Zeigler  v.  Garvin,  4094. 
Zeiner     v.     Mutual     Reserve     Fund 

Life  Ass'n,   988. 
Zeiser     v.     Cohn,     3431,     4044      404'< 
4119.  ' 

Zeisler  v.  Steinmann,  2940. 
Zeisloft    v.    George    V.    Blackburne 

Co.,   2685,   2745,   3717. 
Zeiss  v.  America  Wringer  Company, 

3869. 
Zeitlin    v.   Arkaway,    2009,   2011 
Zeitner  v.   Irwin,   378. 
Zelie   v.   Vroman,    3282,    3302 
Zellenkoff  v.  Collins,   1597. 
Zellweger  v.  Caffe,   1765. 
Zelmanovitz    v.    Manhattan    R.    Co.. 

2986. 
Zeltner  v.  Henry  Zeltner  Brew.  Co., 
4088.  ' 

v.  Irwin,   2247. 
Zenner  v.  Blessing,   3210. 
v.  Dessar,    1290. 
v.  Dexter,   1934. 
Zerega   v.    Benoist,    1432,    1454     1514 
Ziadi  v.  Interurban   St.   R.  Co.',  3662! 

3724,  3785,  4096,   4099 
Ziegler  v.   Lamb.   1780,   1802. 
v.  Pearsall,   2320. 
v.  Trenkman,    1669,    1688. 
v.  Ziegler,  1401. 
Ziemer  v.  Crucible  Steel  Co,  4092 
j  Zilver  v.  Robert  Graves  Co.,  4158 
Zimm  v.   Ritterman,   1359. 
Zimmcr  v.   Bantel,   2757. 

v.  Brooklyn     Sub-Railway     Co.. 

1033. 
v.  Chew,    1034. 
v.  Matteson,   1951. 


4338 


TABLE  OF  CASES. 


[REFERENCES    ARE   TO   PAGES.] 


Zimmer   v.   Metropolitan    St.    R.   Co., 
2673,   2680-2682,  3628. 

v.  Third  Ave.   R.  Co.,   1032,  2250. 
Zimmerman   v.    Fischer,    1478. 

v.  Kinkie,    843. 

v.  Kunkel,    68. 

v.  Long  Island   R.   Co.,    3943. 

v.  Meyrowitz,    945,    4127. 

v.  Schoerrfeldt,   2162. 

v.  Union  R.  Co.,   2664,  2677. 

v.Zimmerman,  594. 
Zinsser  v.    Columbia   Cab    Co.,    1073, 
1092. 


Zinsser  v.  Herrman,  3958. 
Ziporkes  v.  Chmelniker,  737. 
Zivi  v.  Einstein,  950. 
Zobieskie   v.    Bauder,    1939. 
Zoellner  v.  Newberger,   891. 
Zogbaum  v.    Parker,    303,    304. 
Zoller  v.   Groht,   2146. 

v.  Kellogg,  1034. 

v.  Smith,    4010,    4037. 
Zorn  v.  Zorn,   78. 
Zrskowski  v.  Mach,   63,  1002. 
Zust  v.  Smitheimer,  2340. 
Zweigle  v.  Hohman,   440,   470,   472. 


INDEX. 


[REFERENCES    ARE   TO   PAGES.] 


A 

ABANDONMENT, 

of  attachment  lien,  1485. 

of  case  and  exceptions,  2674,  2675. 

of  execution  levy,  3119. 

of  supplementary  proceedings,  3344. 

of  part  of  claim  as  affecting  amount  in  controversy,  125. 

ABATEMENT  AND  REVIVAL, 

abatement  of  nuisance,  see  "Nuisances." 

pendency  of  another  action  as  matter  in  abatement,  45  et  seq.,  and 

see  "Another  Action  Pending." 
pleas  in  abatement,  956. 

sufficiency  of  answer  pleading  matters  in  abatement,  959. 
additional  allowance  of  costs  where  action  abates,  3007. 
stipulation  that  action  shall  not  abate  as  condition  of  awarding  new 

trial,  2744 
actions  abated  by  death  of  party,  2066. 

actions  relating  to  marriage,  2067. 
actions  not  abated  by  death  of  party,  2068. 

partition,  2069. 

ejectment,  2070. 

action  under  civil  damage  act,  2070. 

action  for  damages  for  death  by  wrongful  act,  2070. 

actions  by  abutting  owners,  2070. 

actions  relating  to  mortgages,  2070. 

taxpayer's  action,  2070. 

replevin,  2071. 

actions  based  on  fraud  or  conspiracy,  2071. 

abatement  of  actions  against  officers,  2071. 
when  special  proceeding  abates,  2071. 

continuance  on  death  of  sole  party,  2072,  4155. 
transfer  of  interest  or  devolution  of  liability,  2072,  4155. 

action  not  abated,  2072. 


4310 


INDEX. 


[REFERENCES   ABE   TO   PAGES.] 

ABATEMENT  AND  REVIVAL— Cont'd. 

death  or  removal  of  public  officer,  receiver,  or  trustee,  2078. 
remedy  on  failure  of  plaintiff  to  continue,  2098. 
mode  of  substitution,  2098. 
death  after  verdict,  report  or  decision,  2100. 

entry  of  judgment,  2100. 

in  actions  for  personal  injuries,  2102. 
as  discharging  receiver,  165G. 

death  or  removal  of  receiver  as  abating  action,  1639. 
abatement  of  action  as  dissolving  temporary  injunction,  1G03. 
stipulations  as  to,  as  condition  of  granting  postponement  of  trial, 

2031. 
by  appointment  of  receiver  for  defendant,  1638. 

I.  Continuance  on  Death  of  Sole  Party. 

necessity  of  motion  for  continuance,  2079. 
right  to  move,  2081,  4155. 
motion,  2081. 

who  may  move,  2082. 

time  to  move,  2082. 

notice  of  motion,  2083. 

motion  papers,  2084. 

hearing,  2085. 
order,  2086. 

conditions,  2087. 

persons  to  be  substituted,  2087. 
effect  of  substitution  and  objections  thereto,  2090. 

II.  Continuance  on  Death  of  Co-Party. 

where  entire  cause  of  action  survives,  2092. 

where  deceased  is  jointly  liable  on  contract,  2094,  4155. 

where  liability  on  contract  is  joint  and  several,  2095. 

where  action  is  based  on  a  tort,  2096. 
where  only  a  part  of  the  cause  of  action  survives,  2096. 
where  action  survives  only  against  deceased,  2097. 
procedure,  2097. 

order,  2097. 

ABBREVIATIONS, 

in  pleadings,  821. 
ABSENCE    (see,  also,  "Non-Residence,"  "Non-Residents"), 

service  of  papers  during  absence  of  attorney,  657,  658. 

service  of  summons  during  absence  from  state,  740. 

effect  on  running  of  statute  of  limitations,  505-507. 


index.  4341 

[references  are  to  pages.] 

ABSENCE— Cont'd. 

of  attorney  as  ground  for  new  trial,  2713. 

of  witness  as  ground  for  new  trial,  2712. 

of  party  or  attorney  as  ground  for  opening  default,  2869,  2870. 

of  referee  at  time  for  examination  in  supplementary  proceedings, 

3319. 
from  state  for  six  months  as  ground  of  attachment,  1404. 
•of  party  or  attorney  as  ground  for  continuance,  2025. 
guardian  ad  litem  for  absent  infant  defendant,  2039. 
ground  for  serving  summons  by  publication,  760. 

ABSTRACT  QUESTIONS, 

not  reviewable  on  appeal,  3855. 

ABUTTING  OWNERS   (see,  also,  "Real  Property"), 

causes  of  action  as  properly  joined  in  complaint,  68. 
amendment  by  death  of,  in  actions  by,  2070. 
right  to  jury  trial,  2145,  2151. 
right  to  extra  allowance  of  costs,  3000. 
basis  of  computing,  3015. 

ACCEPTANCE, 

of  offer  to  allow  judgment,  1996. 
of  tender,  2012. 

ACCIDENTS    (see  "Negligence,"  "Injuries  to  Person,"  "Mistake"). 

ACCORD    AND    SATISFACTION    (see,    also,    "Compromise,"    "Settle- 
ment"), 

necessity  of  pleading  as  defense,  954. 

ACCOUNTS  AND  ACCOUNTING, 
copy,  see  "Copy  of  Account." 
definiteness  and  certainty  in  pleading,  851. 

requiring  inspection  to  enable  bill  of  particulars  to  be  framed,  877. 
splitting  action  on  running  account,  54. 
when  cause  of  action  on  mutual  accounts  accrues,  496-498. 
right  of  one  creditor  to  sue  in  behalf  of  all  for  an  accounting,  416. 
period  of  limitations  of  action  for,  469,  473. 
seeking  incidental  relief  for,  as  separate  cause  of  action,  59. 
order  to  produce  books  of  account  and  subpoena  duces  tecum,  1968. 
trial  by  jury,  2150. 

reference  where  long  account  is  involved,  2557. 
reference  to  take,  2569. 
hearing  on  reference  to  take,  2608. 


4;;-f_)  INDEX. 

[REFERENCES   ARE   TO   PAGES.] 

ACCOUNTS  AND  ACCOUNTING— Cont'd. 

contents  of  report  on  reference  to  take,  2617. 

costs  as  matter  of  right  where  accounts  exceed  $400,  2915. 

costs  in  action  for  accounting  as  discretionary,  2927. 

basis  of  computing  extra  allowance  in  action  for,  3017. 

application  at  foot  of  decree,  after  direction  to,  2812. 

accounting  by  receiver,  1G54. 

in  supplementary  proceedings,  3376. 

action  by  receiver  in  supplementary  proceedings,  3372. 

demand  for  in  complaint  as  precluding  money  judgment,  2765. 

ACCOUNT  STATED, 

bill  of  particulars,  870. 

ACKNOWLEDGMENT, 

of  consent  of  proposed  guardian  ad  litem  for  infant  plaintiff,  90. 

of  submission  of  controversy,  34. 

of  undertaking,  679. 

want  of  as  defense  in  action  thereon,  689. 

certificate  of  redemption  from  execution  sale,  3180. 

certificate  of  satisfaction  executed  by  redeeming  creditor,  3171. 

assignment  of  judgment,  2832. 

satisfaction  piece,  where  judgment  satisfied,  2838. 

as  affecting  limitations,  517,  and  see  "Limitation  of  Actions." 

ACQUIESCENCE    (see,  also,  "Estoppel,"  "Waiver,"  "Consent"), 
as  justifying  refusal  of  temporary  injunction,  1565. 

ACTIONS    (see,   also,    "Real   Actions,"   "Assumpsit,"    "Another   Action 
Pending"), 

cause  of,  see  "Cause  of  Action." 
commencement  of,  see  "Commencement  of  Action." 
consolidation,  see  "Consolidation  of  Actions." 
conditions  precedent,  see  "Conditions  Precedent." 
abatement  of,  see  "Abatement." 
demand  before  suing,  see  "Demand." 
obtaining  leave  to  sue,  see  "Leave  to  Sue." 
form,  see  Forms  of  Action." 

joinder  of  causes,  see  "Joinder  of  Causes  of  Action." 
suits  in  equity,  see  "Creditors'  Suits,"  "Cancellation  of  Written  In- 
struments," "Reformation  of  Written  Instruments,"  etc. 
special  proceedings,  see  "Special  Proceedings," 
splitting,  see  "Splitting  Cause  of  Action." 
subject  of,  see  "Subject  of  Action." 


INDEX.  4343 

[references  are  to  pages.] 

ACTIONS— Cont'd. 

limitations  of,  see  "Statute  of  Limitations." 

parties  to,  see  "Parties." 

definition,  10. 

actions  relating  to  real  property,  11. 

abolishment  of  forms,  18. 

actions  in  personam,  11,  12. 

actions  in  rem,  11,  12. 

local  actions,  11,  12,  343. 

transitory  actions,  11,  12,  343. 

action  or  motion  as  proper  procedure,  569. 

bringing  of  fictitious  suit  as  civil  contempt,  326. 

necessity  of  pleading  prematurity  of  action,  957. 

summons  as  commencement  of,  713. 

when  commenced  so  as  to  stop  running  of  limitations,  514  et  seq. 

effect  of  submitting  action  after  commencement,  33. 

on  bond  or  undertaking,  687, 

defenses  arising  after  commencement  of  suit,  959. 

necessity  of  action  against  third  person,  85. 

on  judgments,  2841. 

to  set  aside  judicial  sale,  3229. 

appointment  of  receiver  in  supplementary  proceedings  to  sue,  3350. 

by  receiver  in  supplementary  proceedings,  3372. 

against  receiver,  1652. 

against  bail,  1371. 

for  wrongful  attachment,  1546. 

to  recover  penalty  for  failure  to  obey  subpoena,  1969. 

on  receiver's  bond,  1636. 

on  attachment  bond,  1457. 

to  recover  property  of,  or  debts  due  to,  the  attachment  debtor,  1491. 

on  undertaking  given  to  obtain  order  of  arrest,  1329. 

on  undertaking  given  to  discharge  attachment,  1510. 

on  injunction  undertaking,  1609. 

rights  of  junior  attaching  creditors  as  to  actions,  1533. 

right  of  referee  to  sue,  1647. 

stay  of  proceedings  because  of  another  action  pending,  1916. 

ACTIONS  BY  PEOPLE, 

limitations  applicable,  456-458. 

right  of  people  to  sue  alone  as  trustee  of  express  trust,  390. 

preference  on  calendar,  1674. 

consolidation  of,  1697. 

jurisdiction  of  supreme  court  of  action  to  enforce  penalties,  159. 

liability  of  relator  for  costs,  2961. 


43J4  INDEX. 

|  REFEBENCES    ARE   TO   PAGES.] 

ACTIONS  EX  CONTRACTU  AND  EX  DELICTO, 
effect  of  Code,  26,  4044. 

actions  based  on  contract,  with  charge  of  conversion,  29,  4044. 
action  for  breach  of  contract  where  fraud  or  negligence  alleged,  30, 

4044. 
actions  against  carriers,  31. 
action  for  breach  of  marriage  promise,  32. 
action  against  inn-keeper,  32. 
action  to  recover  statutory  penalty,  32. 
actions  against  corporate  officers,  32. 

ACTUAL  DETERMINATIONS, 
what  are,  3608. 

ADDITIONAL  ALLOWANCES, 

I.  As  Matter  of  Right. 

persons  entitled,  2994. 

matters  considered  in  exercising  discretion,  2998. 

basis  of  computation,  2995. 

amount,  2996. 

procedure  to  obtain,  2996. 

II.  As  Matter  of  Discretion. 

right  to  costs  as  condition  precedent,  2997. 

stipulation  as  affecting,  2999. 

ownership  of  allowance,  2999. 

effect  of  setting  aside  of  verdict  or  judgment,  2999. 

payment  out  of  fund,   3000. 

persons  entitled  and  persons  liable,  3000. 

guardian  ad  litem,  3001. 
number  of  allowances,  3001. 
actions  and  proceedings  in  which  allowed,  3002. 

"difficult  and  extraordinary"  cases,  3002. 

special  proceedings,  3005. 
allowance  where  no  trial  has  been  had,  3005. 

when  defense  is  interposed,  3006. 

on  discontinuance,  2114,  2122,  3006. 

on  dismissal  for  plaintiff's  failure  to  appear,  3007. 

where  action  abates,  3007. 

where  judgment  is  rendered  on  frivolous  pleading,  3007. 

where  offer  of  judgment  is  made,  3007. 
basis  of  computation,  3008. 

where  counterclaim  is  interposed,  3012. 

where  one  sues  for  a  part  of  a  fund,  3012. 


INDEX.  4345 

[references  are  to  pages.] 
ADDITIONAL  ALLOWANCES— Cont'd. 

actions  in  general  where  injunctive  relief  is  sought,  3012. 

actions  where  franchise  is  involved,  3015. 

actions  by  abutting  owners,  3015. 

taxpayer's  action,  3015. 

actions  to  cancel  written  instruments,  3015. 

actions  for  specific  performance,  3016. 

actions  to  declare  a  deed  a  mortgage,  3016. 

actions  to  quiet  title,  3016. 

actions  relating  to  fraudulent  conveyances,  3016. 

actions  involving  an  accounting,  3017. 

actions  relating  to  wills,  3071. 

actions  relating  to  policy  of  insurance,  3018. 

actions  for  trespass,  3018. 

partition  suit,  3018. 

ejectment,  3019. 

actions   to   recover   damages   for   death   by   wrongful   act, 
3019. 
amount,  3019. 

in  mortgage  foreclosure  suit,  3020. 

matters  to  be  considered,  3021. 
procedure  to  obtain,  3021. 

before  whom  to  move,  3021. 

time  for  application,  3022. 

notice  of  application,  3023. 

motion  papers,  3024. 

second  application,  3024. 

order,  3024. 

appeal,  3025. 

ADDRESS    (see,  also,  "Opening  Address  to  Jury,"   "Summing  up  by 
Counsel"), 

motion  papers,  573. 

ADEQUATE  REMEDY  AT  LAW, 

as  precluding  right  to  temporary  injunction,  1565. 

ADJOURNMENT  (see  "Postponement"). 
ADMINISTRATORS   (see  "Executors  and  Administrators"). 

ADMIRALTY  (see,  also,  "Salvage,"  "Prize,'  '"Navy"), 

conflicting  jurisdiction  as  between  state  and  federal  courts,  137-140. 

ADMISSION, 

of  service  of  papers,  666. 
of  service  of  summons,  789. 


4340  INDEX. 

[references  are  to  pages.] 

ADMISSION— Cont'd. 

of  genuineness  of  paper,  1975. 

in  pleadings,  909,  4101. 

by  demurrer,  1012. 

amendments  or  withdrawal  of  pleading  as  affecting,  914. 

effect  of  general  denial  in  answer  coupled  with  admissions,  945. 

amendment  after  trial  to  avoid  effect  of,  1036,  1037. 

necessity  for  incorporation  in  order,  621. 

implied  power  of  attorney  to  make,  269. 

as  binding  on  person  substituted  as  party,  2091. 

severance  of  action  on  admission  of  part  of  plaintiff's  claim,  1702". 

to  prevent  postponement  of  trial,  2030. 

to  avoid  change  of  place  of  trial,  1937. 

of  juror  as  admissible  to  impeach  verdict,  2734. 

ground  for  new  trial,  2708. 

of  service  of  notice  of  motion  for  new  trial  as  waiver,  2730. 

matters  admitted  by  allowing  judgment  by  default,  2860. 

ADVERSE  POSSESSION, 

under  written  instrument,  461,  4074. 

under  claim  of  title  not  written,  463. 

relation  of  landlord  and  tenant  as  affecting,  464. 

death  of  person  in  possession,  464. 

title  by,  as  subject  to  execution  sale,  3138. 

title  by,  as  sufficient,  on  judicial  sale,  3234. 

ADVICE   OF   COUNSEL, 

as  excuse  for  disobeying  order,  339,  1589. 

sufficiency  of  statement  as  to,  in  affidavit  of  merits,  561-563. 

AFFIDAVITS    (see,  also,   "Oaths"), 
power  of  clerk  of  court  to  take,  310. 
preparation  of  affidavit  as  election  of  remedy,  44. 
compelling  making  of  affidavits  for  purpose  of  motion,  578  et  seq. 

I.  Affidavits  Taken  Within  the  State, 
formal  requisites,  536. 
title,  536. 
venue,  538,  4080. 
signature,  538. 
jurat,  539. 
authentication,  540. 
sufficiency,  541. 

statements  on  information  and  belief,  541. 


INDEX.  4347 

[REFERENCES   ARE   TO   PAGES.] 

AFFIDAVITS— Cont'd. 

allegations  of  conclusions,  543. 

alternative  statements,  544. 

omission  of  name  of  deponent,  544. 

showing  compliance  with  statute,  544. 

interlineations  and  erasures,  545. 

scandalous  matter,  545. 

sufficiency  of  copy  served,  545. 
who  may  make,  546,  4080. 

competency  of  deponent  at  witness,  547. 

one  of  several  co-parties,  547. 
who  may  take,  548. 

attorneys,  549,  4080. 
counter-affidavits,  549. 
impeaching  credibility  of  deponent,  550. 
amendment,  550,  4080. 

suppression  and  striking  out  part  of  affidavit,  550. 
use  as  evidence,  551. 

second  use,  551. 

I.  Affidavits  Taken  Within  the  State. 
real  property  law,  552. 
who  may  take  acknowledgments,  553. 

without  the  United  States,  553. 

in  countries  over  which  the  "United  States  exercises  a  pro- 
tectorate, 554. 
jurat,  555. 
authentication  of  officer's  certificate,  556. 

by  whom,  556. 

contents  of  certificate,  557,  4080. 
affidavit  improperly  authenticated  as  evidence,  559. 
time  for  objections,  560. 

III.  Particular  Affidavits. 

submission  of  controversy,  36. 
for  leave  to  amend,  706,  1038. 
order  for  service  of  summons  by  publication,  765. 
service  of  summons,  785. 
service  of  papers,  664. 
for  bill  of  particiars,  871. 
for  more  specific  bill  of  particulars,  879. 
for  extension  of  time  to  answer,  939. 
of  sureties  to  bond  or  undertaking,  676. 

to  compel  making  of  affidavit  or  deposition  for  purpose  of  mo- 
tion, 580. 


1:348  INDEX. 

[BEFEBENOES  are  to  pages.] 
AFFIDAVITS— Cont'd. 

to  obtain  order  to  show  cause,  591. 

of  proposed  guardian  ad  litem  showing  pecuniary  ability,  90. 
for  judgment  on  the  pleadings,  1074. 
appointment  of  receiver,  1630. 
temporary  injunction,  1574. 
attachment,  1431. 

examination  of  party  before  trial,  1178,  1791. 
examination  of  witness  outside  of  state,  1734. 
physical  examination  of  party  before  trial,  1820. 
to  perpetuate  testimony  of  witness,  1723. 
for  interpleader,  1866. 
for  struck  jury,  2055. 
to  postpone  trial,  2028. 
to  change  place  of  trial,  1951. 
to  vacate  attachment,  1521. 
for  security  for  costs,  1899. 

to  vacate  or  modify  a  temporary  injunction,  1597. 
to  consolidate  actions,  1697. 
for  order  of  arrest,  1316. 
for  reference,  2574. 
to  open  default  judgment,  2873. 

for  warrant  of  arrest  in  supplementary  proceedings,  3308. 
at  special  term  for  new  trial,  2731. 
to  set  aside  judicial  sale,  3231. 

to  appoint  receiver  in  supplementary  proceedings,  3347. 
for  leave  to  issue  execution,  3070,  3077. 
for  additional  allowance,  3024. 

permitting  third  person  to  pay  sheriff,  in  supplementary  pro- 
ceedings, 3326. 
supplementary  proceedings,  3279  et  seq. 
of  jurors  on  motion  for  new  trial,  2734. 
to  redeem  from  execution  sale,  3175,  3179. 
to  reach,  by  execution,  wages,  income  from  trust  funds,  etc., 

3110. 
claim  to  personal  property  levied  on,  3123. 
of  disbursements,  3028. 
for  retaxation  of  costs,  3037. 
inclusion  in  case,  2669. 
as  substitute  for  certificate  to  case,  2678. 

AFFIDAVIT  OF  MERITS, 
definition,  560. 
necessity,  560. 


index.  43491 

[REFERENCES   ABE   TO   PAGES.] 

AFFIDAVIT  OF  MERITS— Cont'd. 

second  use,  561. 
who  may  make,  561. 
contents,  561,  4080. 

where  made  by  attorney,  563. 
affidavits  as  enuring  to  benefit  of  co-party,  563. 
counter-affidavits,  564. 

requiring  as  condition  of  allowing  amendment  of  pleading,  1045. 
necessity  on  moving  for  extension  of  time  to  answer,  939. 
necessity  of  service  with  order  extending  time  to  answer,  940. 
effect  of  on  motion  for  bill  of  particulars,  874. 
on  motion  to  open  default  judgment,  2874. 
on  motion  to  change  place  of  trial,  1952. 
on  moving  for  stay  of  proceedings,  1921. 
inquest  for  want  of,  2173. 

AFFIRMANCE, 

what  is  judgment  of,  3624. 
when  unanimous,  3624. 

AGE, 

of  person  serving  summons,  735. 
of  judge,  221. 

AGENTS   (see,  also,  "Partnership"), 

who  is  managing  agent,  see  "Managing  Agent." 

distinction  between  attorney  at  law  and  attorney  in  fact,  240. 

attorneys,  see  "Attorneys,  at  Law." 

necessity  of  demand  before  suing  agent,  80. 

power  to  verify  pleading,  892. 

-power  to  make  affidavit,  516. 

power  to  make  affidavits  of  merits,  561. 

nature  of  action  against  agent  for  conversion  of  goods,  29. 

liability  for  contempt,  341. 

pleading  contract  made  by  agent,  825. 

when  cause  of  action  for  misconduct  of  agent  accrues,  500. 

right  to  sue  as  between  principal  and  agent,  386,  387. 

right  to  sue  alone  as  trustee  of  express  trust,  389,  390. 

when  statute  of  limitations  begins  to  run  against,  491. 

discovery  and  inspection  in  actions  between  principal  and,  1830. 

delivery  by  agent  of  packet  containing  deposition,  1760. 

examination  as  party  before  trial,  1783. 

right  to  arrest  in  actions  against,  1284. 

right  to  arrest  principal  for  act  of  agent,  1304. 


4350  INDEX. 

[REFERENCES  are  to  pages.] 
AGENTS— Cont'd. 

right  to  make  affidavit  for  attachment,  1432. 
right  to  attach  chattels  in  hands  of  agent,  1413. 
liability  of  principal  for  costs,  2945. 

AGREED  CASE  (see  "Submission  of  Controversy"). 

AGREEMENT    (see,    also,    "Submission    of    Controversy,"    "Consent," 
"Stipulations"), 
effect  of  agreement  of  counsel  as  to  place  for  making  motion,  597. 
validity  where  signed  by  party  without  notice  to  attorney,  269. 
to  change  place  of  holding  court,  112. 
for  attorney's  lien,  289. 
to  discontinue  action,  2107. 
discharge  of  jury  on  failure  to  agree,  2351. 
to  set  aside  satisfaction  of  judgment,  2841. 

as  affecting  right  of  others  to  redeem  from  execution  sale,  3162. 
not  to  appeal,  362. 

ALIAS  EXECUTION, 
what  is,  3087. 

ALIEN, 

security  for  costs,  1885. 
naturalization,  185. 

ALIENATION  OF  AFFECTIONS, 

bill  of  particulars,  868. 
attachment  in  action  for,  1393. 
injury  as  personal,  1280. 

ALIMONY   (see,  also,  "Divorce"), 
attorney's  lien  on,  294. 
service  of  order,  335. 
enforcement  of  payment  by  execution,  3060,  3061. 

ALTERATION  OF  INSTRUMENTS, 

effect  of  interlineation  and  erasures  in  affidavits,  545. 
right  to  change  process,  pleading  or  record  without  leave  of  court, 
706. 

ALTERNATIVE  STATEMENTS, 
in  pleadings,  842. 
in  affidavits,  544. 


INDEX.  4351 

[references  are  to  pages.] 
AMBASSADORS, 

exemption  from  arrest,  1311. 
jurisdiction  of  actions  involving,  144. 

AMBIGUITY, 

in  pleadings,  842. 

AMENDMENT, 

as  affecting  election  of  remedy,  45.  ^ 

history  of  statute  of  amendments,  698. 

allowance  of  on  decision  on  demurrer,  1015,  1016. 

implied  power  of  counsel  to  amend,  269. 

as  constituting  another  action  pending,  46. 

resume  of  statutes,  699. 

defects  cured  by  verdict,  report  or  decision  and  judgment,  703. 

procedure,  706. 

terms  on  allowing  amendment,  707. 

mode  of  amending,  707. 

order,  707. 

service,  707. 

disregarding  errors,  708. 

power  of  referee,  2596. 

to  cure  failure  to  appoint  guardian  ad  litem,  2041. 

I.  Of  Pleadings. 

amendments  of  course,  1021. 

time,  1022,  4117. 

subject-matter,  1024. 

withdrawal  of  demurrer  and  service  of  answer,  1025. 

striking  out  amended  pleading,  1025,  4117. 

service  of  amended  pleading  and  subsequent  proceedings, 
1026. 
amendments  by  leave  of  court  before  trial,  1026,  4117. 
amendments  by  leave  of  court  on  the  trial,  1028,  4118,  4119. 
amendments  by  leave  of  court  after  trial,  1035,  4120. 
application  for  leave  to  amend,  1037,  4120,  4121. 
hearing  and  determination,  1039,  4121. 
order,  1042,  4121. 

terms  which  may  be  imposed,  1043,  4121,  4122. 
the  amended  pleading,  1046,  4122. 

effect  of  amendments,  1047,  4122. 
right  to  amend  supplemental  pleadings,  1059. 
right  to  demur  to  amended  pleading,  995. 
right  to  demur  to  amended  answer,  1002. 


1:352  INDEX. 

[REFERENCES   ARE   TO   PAGES.] 

AMENDMENT— Cont'd. 

as  affecting  admissions  therein,  914. 

supplemental  as  distinguished  from  amended  pleadings,  1051. 

service  of  amended  pleading,  884. 

of  complaint  to  obtain  order  of  arrest,  1325. 

of  complaint  as  affecting  offer  of  judgment,  1991. 

of  complaint  as  dissolving  injunction,  1603. 

of  complaint  as  affecting  order  of  reference,  2581. 

after  award  of  new  trial,  2746. 

of  verification,  900. 

as  authorizing  exclusion  of  deposition,  1769. 

bringing  in  new  parties  by,  2098. 

new  notice  of  trial  on,  1662. 

postponement  of  trial  on,  2025. 

to  defeat  motion  for  change  of  place  of  trial,  1948. 

vacating  judgment  to  allow  amendment  of,  2817. 

amendment  of  sum  demanded  to  support  verdict,  2766 

II.  Of  Miscellaneous  Papers. 
rules  of  court,  108. 
affidavits,  550. 
summons,  718,  795. 
date  of  summons,  721. 
amount  demanded  in  summons,  728. 
order,  633. 

bill  of  particulars,  879. 
bond  or  undertaking,  686. 
proof  of  service  of  summons,  800. 
returns  of  officers,  706. 
note  of  issue,  1669. 
order  of  arrest,  1332. 

undertaking  to  obtain  order  of  arrest,  1328. 
attachment  bond,  1457. 
deposition,  1763. 

offer  to  allow  judgment,  1994,  1996. 
petition  for  guardian  ad  litem,  2045. 
warrant  of  attachment,  1463. 
verdict,  2362. 
decision,  2384. 
order  of  reference,  2580. 
report  of  referee,  2624,  2646. 
case  in  appellate  court,  2682. 

certificate  of  sale  of  realty  under  execution,  3147. 
docket  of  judgment,  2800. 


index.  4353 

[references  are  to  pages.] 
AMENDMENT— Cont'd. 

execution,  3091,  31SS. 

judgment,  see  "Judgment." 

judgment  as  postponing  lien,  2808,  2814. 

judgment  roll,  nunc  pro  tunc,  2790. 

return  of  execution,  3185. 

sheriff's  deed,  3159. 

statement  confessing  judgment,  2886. 

proposing  amendments  to  case,  2659. 

allowance  of  amendments  to  case  by  failure  to  notice  for  set- 
tlement, 2674. 

settlement  of  proposed  amendments  to  case,  2670. 

amount  of  costs  for  making  and  serving  amendments  to  case, 
2971. 

notice  of  appeal,  3724. 

undertaking  to  stay  proceedings  pending  appeal,  3763. 

AMOUNT, 

amendment  of  amount  demanded  in  summons,  728. 
as  affecting  jurisdiction,  124,  125. 
of  bond  or  undertaking,  676. 
of  tender,  2009. 
statement  in  execution,  3094. 
statement  in  judgment,  2757. 
statement,  in  docket  book,  of  judgment,  2792. 
to  redeem  from  execution  sale,  3168. 
reducing  by  amendment  of  judgment,  2711. 

judgment  on  which  supplementary  proceedings  may  be  based,  3273. 
affidavit  as  to  amount  due  on  judgment,  on  seeking  to  redeem  from 
execution  sale,  3177. 

AMOUNT  IN  CONTROVERSY, 

affecting  right  to  consolidate  actions,  1695. 

ANIMALS, 

sale  by  sheriff,  1478. 

ANNUITY, 

reached  by  creditor's  suit,  3402,  3405. 

basis  of  computing  additional  allowance,  in  action  to  recover,  3011. 

ANOTHER  ACTION  PENDING, 

effect,  45,  4046. 

priority  of  suits,  46,  4046. 

N.  Y.  Prac—  273. 


4.^54  INDEX. 

[references  are  to  pages.] 
ANOTHER  ACTION  PENDING— Cont'd. 

when  former  action  is  regarded  as  pending,  46,  4046. 

former  action  commenced  without  authority,  47. 

necessity  of  identity  of  causes  of  action,  48. 

identity  of  relief  sought,  48. 

cumulative  remedies,  49. 

ground  for  staying  proceedings,  1916. 

action  on  debt  and  to  foreclose  mortgage,  49. 

for  part  of  demand,  49. 

necessity  of  identity  of  parties,  49,  4046. 

necessity  that  relief  sought  be  obtainable  in  former  action,  50,  4046. 

as  affecting  counterclaim,  51. 

in  which  claim  might  be  set  up  as  a  counterclaim,  51,  4047. 

action  in  foreign  jurisdiction,  51. 

method  of  raising  defense,  52 

as  precluding  motion,  611. 

as  ground  of  demurrer,  997. 

necessity  of  pleading  as  defense,  957. 

sufficiency  of  answer  setting  up  pendency,  960. 

ground  of  demurrer  to  counterclaim,  1004. 

waiver  of  objection  that  another  action  is  pending,  1090-1091. 

pendency  'of  one  motion  as  precluding  another  motion,  610. 

ANSWER    (see,  also,  "Pleadings,"   'Amendments,"  "Counterclaim  and 
Set-Off,"   "Sham  Pleadings,"    "Supplemental   Pleadings,"    "Frivo- 
lous Pleadings"), 
time  to  answer,  937,  2091,  4104. 

extension  of  time  to  answer,  938,  1901,  4104. 
power  of  county  judge  to  extend  time,  188. 
power  of  judge  out  of  court  to  extend  time,  238. 
demand  for  relief,  942. 
denials,  942. 
nature  and  kinds  of  denials,  942. 

denials  as  defenses,  943,  4105. 
joint  and  several  answers,  942. 
what  should  be  denied,  943. 
general  denials,  944. 

general  denials  coupled  with  admissions,  945. 

evidence  admissible  under  a  general  denial,  946,  4105. 
specific  denials,  947. 

negatives  pregnant,  948,  4105. 
joinder  of  general  and  specific  denials,  949. 
joinder  of  denial  and  defense,  949. 
argumentative  denials,  949. 


INDEX.  4355 

[REFERENCES    ARE    TO    PAGES.] 

ANSWER— Cont'd. 

denial  of  knowledge  or  information,  950,  4105. 

denials  on  information  and  belief,  952. 

defenses,  953,  4104,  4106. 

necessity  of  pleading  defenses,  953,  4106. 

what  is  "new  matter,"  constituting  a  "defense,"  953,  4106. 

statute  of  frauds,  955,  4107. 

statute  of  limitations,  955. 

matters  in  abatement,  956,  4107. 
contents  and  sufficiency,  958,  4107. 

defenses  arising  after  commencement  of  suit,  959,  4109. 

matters  in  abatement,  959,  4109. 
partial  defenses,  961,  4109. 

mitigating  circumstances  in  an  action  for  a  wrong,  962. 
joinder  of  defenses,  964. 

mode  of  stating  separate  defenses,  964,  4110. 
separation  of  new  matter  in  answer  from  denials,  1088. 
leave  to  answer  on  overruling  demurrer,  1016. 
service  of  copy,  882. 
service  on  co-defendant,  883,  2761. 
as  supplying  defects  in  complaint,  925. 
provision  in  summons  as  to  time  of  answer,  718. 
admissions  by  failue  to  deny,  909. 
admission  by  indirect  denials,  911. 

power  to  compel  election  between  answer  and  demurrer,  1086. 
effect  of  want  of  or  defects  in  verification,  901. 
waiver  of  objections  to  answer,  1092. 
supplemental  answer,  1054. 

answering  over  as  waiving  objections  to  amendment,  1043. 
withdrawal  of  demurrer  and  service  of  answer,  1025. 
manner  of  raising  objection  that  infant  appears  without  guardian, 

92. 
power  of  attorney  to  withdraw  against  instructions  of  client,  269. 
interposing  false  unverified  answer  as  civil  contempt,  327. 
right  to  answer  amended  complaint,  1048. 
discovery  and  inspection  to  enable  defendant  to  frame,  1836. 
effect  of  failure  of  guardian  ad  litem  to  serve,  2051. 
effect  on  motion  to  dissolve  temporary  injunction,  1599. 
effect  of  admission  of  part  of  plaintiff's  claim,  1702. 
striking  out  on  consolidation  of  actions,  1700. 
inquest  on  failure  to  answer,  2170. 
relief  granted  where  there  is  no,  2763. 
judgment  by  default  where  not  served  in  time,  2848. 
taking  default  judgment,  where  insufficient,  2847. 
costs  where  defendants  answer  separately,  2940. 


4356  INDEX. 

[references  are  to  pages.] 
APPEALS, 

to  court  of  appeals,  see  "Court  of  Appeals." 

to  appellate  division,  see  "Appellate  Division." 

to  appellate  term,  see  'Appellate  Term." 

to  county  court,  see  "County  Court." 

from  surrogate's  court,  see  "Surrogate's  Court." 

calendar,  see  "Court  of  Appeals,"  "Appellate  Division." 

costs,  see  "Costs  on  Appeal." 

dismissal,  see  "Dismissal  of  Appeal." 

notice  of  appeal,  see  "Notice  of  Appeal." 

papers   on   appeal,   see  "Court  of  Appeals."   "Appellate   Division." 

"County  Courts." 
rehearing,  see  "Rehearing  on  Appeal." 

stay  pending  appeal,  see  "Stay  of  Proceedings  Pending  Appeal." 
nature  of  remedy,  3592. 
nature  of  right,  3597. 
as  new  action,  3597. 
existence  of  other  remedies  in  lower  court,  3594. 

motion  to  modify,  amend,  or  vacate,  644,  2809,  3594. 

setting  verdict  aside,  3595. 

motion  for  rehearing,  3595. 

motion  for  new  trial,  3596. 
original  application  to  appellate  division  instead  of,  3596. 
payment  of  costs  as  condition  precedent,  3598. 
stay  of,  3598. 

necessity  of  case  to  perfect,  2654. 
new  case  after  motion  for  a  new  trial,  2653. 
resettlement  of  case  after  decision  on  appeal,  2681. 
undertaking  to  discharge  levy  under  execution,  3120. 

I.  Judgments  and  Orders  Appealable. 

to  particular  courts,  see  "Appellate  Division,"  etc. 

statutory  provisions  making  judgment  or  order  final,  3602,  3638. 

judgment  or  order  not  entered,  3602,  3682. 

default  judgment  or  order,  3602,  3651. 

consent  jugdment  or  order,  3602,  3663. 

void  judgment  or  order,  3602. 

ex  parte  order,  3602. 

part  of  judgment  or<  order,  3603. 

amended  orders,  3604. 

order  where  leave  to  move  to  renew  or  vacate  is  granted,  3604. 

where  only  abstract  questions  involved,  3605. 

indirect  appeal,  3605. 

second  appeal,  3605. 


index.  4357 

[references  are  to  pages.] 
APPEALS— Cont'd. 

after  dismissal  of  appeal,  3606. 

order  for  examination  of  party  before  trial,  1809. 

order  granting  a  discharge  from  arrest,  1353. 

order  of  interpleader,  1869. 

order  dismissing  complaint  for  failure  to  prosecute,  2131. 

order  granting  or  refusing  preference  on  calendar,  1684. 

order  refusing  to  postpone  trial,  2032,  2033. 

order  changing  place  of  trial,  1963. 

orders  in  supplementary  proceedings,  3267. 

order  to  pay  bid  at  judicial  sale,  3241. 

order  adjudging  person  in  contempt  in  supplementary  proceed- 
ings, 3340. 

order  appointing  receiver  in  supplementary  proceedings,  3356. 

order  for  additional  allowance  of  costs,  3025. 

order  denying  motion  to  resettle  case,  2682. 

order  for  new  trial  of  feigned  issues,  2739. 

order  directing  reference  or  writ  of  inquiry,  on  assessment  of 
damages  on  default,  2861. 

order  of  reference,  2582. 

II.  Who  May  Appeal. 
parties,  3649. 

party  in  default,  3651. 

successful  party,  3652. 

party  whose  interest  has  terminated,  3653. 

one  of  several  parties,  3653. 

executors  and  administrators,  3654. 

trustees,  3655. 

corporations,  3655. 

officers  or  stockholders  of  corporation,  3656. 

receivers,  3656. 

public  officers,  3656. 

creditors,  3656. 

parties  to  condemnation  proceedings,  3657. 

parties  to  election  contests,  3657. 
persons  entitled  to  be  substituted  as  parties,  3657. 
persons  not  parties,  3658. 

purchasers  at  judicial  sales,  3659. 

witnesses,  3659. 

receiver,  3659. 

referee,  3659. 

attorneys,  3659. 

sureties,  3660. 


435S  INDEX. 

[references  are  to  pages.] 
APPEALS— Cont'd. 

persons  examined  in  supplementary  proceedings,  3610. 
person  who  has  not  appealed  to  intermediate  court,  3660. 
right  of  attorney  to  appeal  or  retain  appeal  against  wishes  of 
client,  302. 

III.  Waiver  of  Right  to  Appeal. 
agreements,  3662. 

consent  to  judgment  or  order,  3663. 

acceptance  of  part  of  judgment  or  order  favorable  to  appellant, 
3664. 
acceptance  of  conditions  imposed  on  adverse  party,  3665. 
appeal  from  part  of  a  judgment  or  order,  3665. 
payment,  3666. 
accepting  payment,  3666. 
payment  or  acceptance  of  award  in  condemnation  proceedings, 

3667. 
acceptance  of  costs,  3667. 
proceeding  with  trial,  3668. 

submission  to  new  trial,  3668. 
answering  after   demurrer  is   overruled   or  motion  is   denied, 

3668. 
amendment  of  pleadings,  3668. 
pleading  judgment  as  defense,  3669. 
prosecuting  another  action  on  counterclaim,  3669. 
renewal  of  motion,  3669. 
appeal  from  judgment  as  waiver  of  right  to  appeal  from  order, 

3670. 
by  entering  judgment  on  remittitur,  3670. 
waiver  as  condition  of  opening  default  judgment,  2876. 

IV.  Parties. 
designation,  3672. 
appellants,  3672. 
respondents,  3672. 
substitution,  3673. 

personal  representatives  as  respondents,  3673. 

to  what  court  application  to  be  made,  3674. 

procedure  to  obtain  substitution,  3675. 

procedure  where  no  order  of  substitution  is  obtained,  3676. 

V.  Time  to  Appeal. 

disabilities  as  preventing  running  of  time,  3681. 
expiration  of  time  to  appeal  from  judgment  as  affecting  right 
to  appeal  from  order,  and  vice  versa,  3682. 


INDEX.  4359 

[references  are  to  pages.] 

APPEALS— Cont'd. 

premature  appeals,  3682. 

procedure  where   order  made  by  judge  out  of  court  has 
not  been  entered,  3683. 
extension  of  time,  3685. 

by  stipulation,  3687. 

death  of  party  entitled  to  appeal,  3687. 
computation  of  time,  3687. 
procedure  where  appeal  not  taken  in  time,  3688. 

waiver  of  objections,  3688. 

VI.  Notice  to  Limit  Time  to  Appeal. 

necessity,  3688. 
who  must  serve,  3689. 
person  to  be  served,  3690. 
service  by  mail,  3690. 
sufficiency  of  notice,  3690. 

stating  time  and  place  of  entry  of  judgment  or  order,  3691. 

statement  as  to  nature  of  judgment  or  order  appealed  from, 
3692. 

signature,  3692. 

copy  of  judgment  or  order,  3692. 

waiver  of  objections,  3693. 
effect  where  served  after  proceedings  are  stayed,  3693. 
new  notice,  3694. 

VII.  Security  to  Perfect. 
necessity,  3726-3728. 
form  and  contents,  3728. 

one  or  more  undertakings,  3730. 
sureties,  3731. 
service,  3731. 
new  undertaking,  3732. 
effect  as  perfecting  appeal,  3732. 
vacating  or  setting  aside,  3732. 
supplying  omission  to  give,  3732. 
liability  on  undertaking,  3733. 
deposit  in  lieu  of  undertaking,  3733. 

VIII.  Effect  of. 

time  when  jurisdiction  of  appellate  tribunal  attaches,  3785. 
extent  of  jurisdiction  acquired  by  appellate  court,  3785. 

appeal  from  part  of  judgment  or  order,  3785. 

appeal  from  interlocutory  order,  3786. 
proceedings  in  lower  court  after  taking  of  appeal,  3786. 


4360  INDEX- 

[references  are  to  pages.] 

APPEALS— Cont'd. 

opening  judgment  or  order,  3786. 

amendment  of  judgment  or  order,  3786. 

actions  relating  to  judgment  appealed  from,  3786. 

renewal  of  motion,  3787. 

motion  for  new  trial,  3787. 

appointment  of  receiver,  3787. 

injunction,  3787. 

proceeding  with  trial  after  appeal  from  interlocutory  de- 
terminations, 3787. 

matters  relating  to  record,  3787. 
effect  on  judgment  or  order  appealed  from,  3789. 

judgment  as  estoppel,  3789. 

lien  of  judgment,  3789. 

judgment  as  subject  of  set-off,  3789. 
appeal  as  enlarging  time,  3790. 
waiver  by  taking  of  appeal,  3790. 

as  precluding  set-off  of  motion  costs  against  judgment,  3044. 
from  order  as  precluding  motion  to  vacate  it,  2741. 
as  waiver  of  right  to  object  to  costs,  2905. 
as  terminating  temporary  injunction,  1603. 
as  affecting  right  to  sue  on  undertaking  given  to  obtain  order 

of  arrest,  1330. 
effect  on  attachment  proceedings,  1529. 
from  order  granting  leave  to  amend  pleading  as  waiving  right 

to  amend,  1043. 
pendency  of  appeal  from  order  as  excusing  disobedience,  340. 
as  affecting  pendency  of  action,  47. 
enforcement  of  liability  of  third  person  for  costs  while  appeal 

is  pending,  2948. 
as  waiver  of  motion  to  vacate  judgment,  2829. 
from  judgment,  as  defense  to  creditor's  suit  based  thereon,  3396. 
as  affecting  time  in  which  judgment  is  a  lien,  1892. 
as  bar  to  issuance  of  execution,  3081. 

IX.  Briefs. 

in  court  of  appeals,  see  "Court  of  Appeals." 
in  appellate  division,  see  "Appellate  Division." 

X.  Questions  Reviewed. 

what  law  governs,  3853. 

stipulations  as  affecting  scope  of  review,  3853. 

trial  de  novo,  3853. 

additional  proof,  3853. 

amendments,  3855. 


INDEX.  4361 

[references  are  to  pages.] 

APPEALS— Cont'd. 

review  on  appeal  from  part  of  judgment  or  order,  3855. 

abstract  questions,  3855. 

interlocutory  determinations,  3856. 

errors  not  urged  in  lower  court,  3857. 

errors  not  shown  by  the  record,  3859. 

harmless  errors,  3860. 

rulings  on  evidence,  3861. 

charge  to  jury,  3863. 

findings  of  court  or  referee,  3864. 
errors  as  to  grounds  of  decision,  3864. 
errors  cured  in  lower  court,  3865. 
errors  affecting  respondent,  3866. 
errors  affecting  co-party  not  appealing,  3867. 
errors  which  appellant  is  estopped  to  allege,  3867. 
presumptions,  3867. 

jurisdictional  facts,  3868. 

ground  for  granting  new  trial,  3868. 

filing  of  decision  as  basis  for  judgment,  3869. 

findings  of  fact,  3869. 

where  case  does  not  contain  all  the  evidence,  3870. 

on  appeal  from  nonsuit  or  directed  verdict,  3870. 
review  of  inconsistent  findings  of  fact,  3871. 
review  on  second  or  further  appeal,  3871. 

XI.  Relief  Granted  and  Subsequent  Procedure. 
default  judgments,  3895. 

effect  of  death  of  party  before  decision,  3896. 
appeal  from  order  or  interlocutory  judgment,  3897. 
reversal  for  formal  or  trivial  errors,  3898. 
reversal  in  part  where  all  co-parties  do  not  appeal,  3899. 
reversal  in  toto  where  appeal  is  from  only  part  of  judgment  or 

order,  3899. 
reversal  in  part  where  appeal  is  from  all  of  judgment,  3900. 
propriety  of  ordering  final  judgment,  3901. 
reversal  or  modification,  3903. 

reducing  the  recovery,  3904. 

increasing  the  recovery,  3906. 
allowing  amendments  to  avoid  reversal,  3907. 
where  both  parties  appeal,  3908. 
incidental  relief  to  unsuccessful  party,  3908. 
restitution,  3909. 

power  of  appellate  court  as  exclusive,  3910. 

order  as  discretionary,  3910. 


4362  index. 

[references  are  to  pages.] 

APPEALS— Cont'd. 

propriety  of  granting,  3910. 

extent  of  relief  granted,  3912. 

motion,  3912. 

enforcement  of  order,  3913. 

appeal  from  order,  3913. 
enforcement  of  judgment  affirmed,  3913. 

motion  for  new  trial  after  affirmance,  3914. 
noting  reversal  or  modification  of  money  judgment  on  docket 

book,  3914. 
effect  of  reversal,  3914. 
new  trial,  3915. 

mode  of  trial,  3915. 

amendment  of  pleadings,  1915. 

evidence,  3916. 

law  of  the  case,  3916. 
new  hearing  of  motion  in  the  lower  court,  3917. 

APPEARANCE, 

in  supplementary  proceedings,  see  "Supplementary  Proceedings." 
nature  of  proceeding,  802. 

before  service  of  process,  804,  4090. 
time  to  appear,  804,  4090. 
who  may  enter  appearance,  805,  4090. 
what  constitutes  an  appearance,  805,  2862,  2863,  3273. 

by  plaintiff,  808. 

sufficiency  for  some  purposes,  808. 
subscription  of  notice  of  appearance,  809. 
effect  of  indorsements  on  notice  of  appearance,  809. 
entry  of  appearance  where  default  is  intended,  809. 
entry  of  appearance  as  part  of  record,  810. 
special  appearance,  810. 

general  or  special  appearance,  811,  1517. 

effect,  812. 
waiver  of  notice  of  appearance,  813. 
effect  of  general  appearance,  813,  4090. 
after  granting  of  attachment,  1386. 
after  expiration  of  time  to  answer,  2857. 

effect  of  unauthorized  appearance  by  attorney,  272,  817,  2819. 
effect  of  failure  to  appear,  817,  2170. 
in  supplementary  proceedings,  3336. 
necessity  of  service  of  papers  on  defendant  who  has  not  appeared, 

656. 
striking  out  appearance,  817. 


index.  4363 

[references  are  to  pages.] 

APPEARANCE— Cont'd. 

withdrawal  of  appearance,  817. 

by  attorney  of  infant  party  as  cured  by  verdict,  report  or  decision, 
703.  . 

APPELLATE    DIVISION     (see,     also,     "Supreme    Court,"    'Appellate 
Term"), 

I.  In  General. 

court  of  record,  101. 
number  of  judges  to  sit,  171. 
quorum,  171. 
residence  of  justices,  171. 
how  justices  are  chosen,  172. 

presiding  justice,  172. 
jurisdiction,  173. 

original  applications  to,  3596. 

motion  for  additional  allowance,  3022. 

hearing  of  exceptions,  2771. 

receiving  verdict,  2357. 

vacating  or  modifying  injunction,  1593. 

on  submission  of  controversy,  37. 

as  distinguished  from  special  term,  165,  166. 
terms  of  court,  173. 
place  of  holding  court,  173. 
powers  of  justices,  174. 

decision  as  binding  on  justice  at  trial  term,  116. 
power  to  make  rules  of  court  for  department,  109. 
power  to  resettle  case,  2679,  2680. 
amount  of  costs  on  application  to,  2976. 
directing  verdict  subject  to  opinion  of,  228. 

II.  Appeals  in  General. 

rules  equally  applicable  to  appeals  to  court  of  appeals  or  ap- 
pellate division,  see  'Appeals." 
security  to  perfect,  3728. 

stay  of  proceedings,  see  "Stay  of  Proceedings  Pending  Appeal." 
time  to  appeal,  3696,  and  see  "Appeal." 

III.  Judgments  and  Orders  Appealable. 

final  judgments,  3625,  3644. 
interlocutory  judgments,  3626,  3644. 

judgment  or  order  entered  on  decision  of  appellate  term  on  ap- 
peal from  city  court,  3626. 


4364  index. 

[references  are  to  pages.] 

APPELLATE   DIVISION— Cont'd. 

order  relating  to  provisional  remedy.  2628. 

orders  relating  to  settlement  or  resettlement  of  a  case,  3628. 

order  granting  or  refusing  new  trial,  3628. 

order  involving  some  part  of  the  merits,  3629. 

order  affecting  a  substantial  right,  3631. 

order  imposing  conditions,  3631. 

order  to  show  cause,  3631. 

order  on  motion  for  reargument  or  resettlement,  3631. 

order  granting  or  refusing  leave  to  sue,  3631. 

orders  as  to  parties,  3632. 

orders  as  to  change  of  place  of  trial,  3632. 

order  transferring  cause  to  another  court,  3632. 

orders  as  to  pleadings.  3632. 

order  on  motion  for  judgment  on  the  pleadings,  3633. 

orders  as  to  mode  of  trial,  3633. 

order  denying  postponement,  3634. 

order  requiring  election  between  causes  of  action,  3634. 

order  of  dismissal  or  nonsuit,  3634. 

orders  relating  to  depositions,  3634. 

order  for  discovery,  3635. 

orders  relating  to  calendar,  3635. 

order  to  hear  exceptions  at  appellate  division,  3636. 

orders  relating  to  judgments,  3636. 

orders  relating  to  costs  and  fees,  3636. 

orders  relating  to  writ  of  assistance,  3636. 
order  in  effect  determining  the  action,  3637. 
order  declaring  statute  unconstitutional,  3637. 
orders  in  mandamus  proceedings,  3640. 
orders  in  contempt  proceedings,  3640. 
orders  in  condemnation  proceedings,  3641. 
orders  relating  to  writ  of  prohibition,  3642. 
orders  in  habeas  corpus  proceedings,  3642. 
orders  in  supplementary  proceedings,  3643. 
orders  in  special  proceedings  in  general,  3638,  3646. 
judge's  order,  3637. 
county  court  order,  3645. 

IV.  Leave  to  Appeal. 

to  whom  application  to  be  made,  3708. 

time  for  motion,  3708. 

motion  papers,  3708. 

when  leave  to  appeal  should  be  granted,  3709. 

order,  3709. 


INDEX.  4365 


[references  are  to  pages.] 
APPELLATE  DIVISION— Cont'd. 

V.  Papers  on  Appeal. 

party  to  furnish  papers,  3799. 
contents  of  record,  3799. 

opinion  of  court  below,  3802. 

statement  of  facts  required  by  rule  41,  3802. 
ordering  case  and  exceptions  filed,  3802. 
indexing  the  case,  3803. 
certification  of  papers,  3803. 
filing  of  papers,  3803. 

time,  3803. 
service,  3804. 

procedure  on  failure  to  file  or  serve,  3804. 
delivery  of  copies  before  argument,  3804. 
separate  records,  3805. 
conclusiveness,  3805. 
defects  in  record,  3805. 

VI.  Briefs. 

filing  and  service,  3811. 

on  non-enumerated  motions,  3812. 

supplemental  brief,  3813. 

indorsements,  3813. 

contents,  3813. 

statement  of  facts,  3813. 

citation  of  statutes,  3814. 

citation  of  cases,  3814. 

effect  of  failure  to  discuss  exceptions,  3814. 

VII.  Calendars  and  Order  of  Causes. 
in  general,  1673. 

rules  which  govern,  3821. 
filing  of  papers  as  condition,  3821. 
notes  of  issue,  3821. 
order  of  causes,  3822. 

preferred  causes,  3823. 

passed  causes,  3823. 
day  calendar,  3824. 
exchange  of  causes,  3824. 
reservation  of  causes,  3825. 

VIII.  Hearing  and  Argument. 
where,  and  by  whom,  heard,  3827. 
time  for,  3828. 


4366  INDEX. 

[references  are  to  pages.] 
APPELLATE  DIVISION— Cont'd. 

submission  without  argument,  3829. 
time  allowed  for,  3829. 
motions,  3830. 

IX.  Questions  Revieioed  on  Appeal. 

on  appeal  from  judgment  entered  on  verdict,  3886. 

on  appeal  from  final  judgment  on  trial  without  jury,  3887. 

on  appeal  from  final  judgment  after  affirmance  of  interlocutory 

judgment,  3888. 
discretionary  rulings,  3889. 
necessity  of  exceptions,  3889. 
sufficiency  of  evidence,  3890. 
on  appeal  from  inferior  court,  3892. 
on  appeal  from  appellate  term,  3892. 
on  appeal  from  surrogates'  courts,  see  "Surrogates'  Courts." 

X.  Relief  Granted  and  Subsequent  Procedure. 

disposition  of  appeal,  3927. 

appeal  from  nonsuit  or  verdict  directed  after  issues  sub- 
mitted to  jury,  3928. 
contents  of  judgment  or  order,  3929. 

amendment,  3931. 

resettlement,  3932. 
entry  of  order  and  subsequent  precedure,  3932. 

necessity  that  judgment  be  entered,  3932. 

stay  of  proceedings  after  entry  of  judgment,  3933. 
judgment  roll  on  affirmance,  3933. 

applications  to  after  determination  of  appeal  by  court  of  ap- 
peals, 3933. 
on  appeal  from  inferior  court,  3933-3935. 
on  appeal  from  appellate  term,  3935. 

APPELLATE  TERM, 

hearing  of  exceptions  in  first  instance,  2722. 
appeal  to  appellate  division,  3626. 
appeal  from  city  court  of  New  York,  3648. 

from  final  judgments,  3648. 

from  interlocutory  judgments,  3648. 

from  orders,  3648. 
scope  of  review  on  appeal,  3893. 

APPLICATIONS  AT  FOOT  OF  DECREE, 
propriety,  2811. 


index.  4367 

[references  are  to  pages.] 

APPROVAL, 

of  bond  or  undertaking,  681. 

want  of  as  defense  in  action  thereon,  689. 

ARBITRATION  AND  AWARD, 

Code  rule,  39. 

submission  to  as  constituting  pendency  of  another  action,  46. 

implied  power  of  attorney  to  submit  to  arbitration,  270. 

award  on  Sunday,  105. 

necessity  of  pleading  award  as  a  defense,  954. 

time  within  which  to  bring  action  on  sealed  award,  469. 

effect  of  revocation  of  submission  or  stay  of  remedy  on  award,  on 

limitations,  513. 
as  discontinuance  of  action,  2111. 
necessity  of  case  on  appeal,  2655. 
additional  allowance  in  action  to  set  aside  award,  3011. 

ARGUMENTATIVENESS, 

in  pleading,  842. 

sufficiency  of  argumentative  denials  in  answer,  949. 

ground  of  demurrer,  1002. 

charge  to  jury,  2324. 

ARGUMENTS     (see,   also,   "Open    and    Close,"   "Opening    Address    to 
Jury"), 

time  for,  and  right  to  open,  on  hearing  of  motion,  608,  609. 
opening  on  argument  of  verdict  subject  to  opinion  of  court,  2289. 
on  appeal,  3829. 

ARMY, 

exemption  of  soldiers  from  arrest,  1312. 
property  of  soldier  as  exempt,  1423. 

ARRAY, 

challenges  to,  2190. 

ARREST   (see,  also,  "Bail,"  "Imprisonment,"  "Execution  Against  the 
Person"), 

definition  and  object,  1274. 

election  between  order  of  arrest  and  attachment,  269. 

preference  on  calendar  where  defendant  is  imprisoned  under  order 

of  arrest,  1680. 
jurisdiction,  1275. 
law  which  governs,  1275. 


43GS  INDEX. 

I  i;i:h:i;i  \t  i  s    a i;i    to    lwges.  I 
ARREST— Cont'd. 

discretion  of  court,  1276. 

who  may  obtain  the  order,  1276. 

miscellaneous  grounds  for  refusing,  1276. 

merger  or  change  of  original  cause  of  action,  1277. 
amount  of  costs  for  procuring,  2964. 

consent  to  release  from  as  barring  body  execution,  3201. 
warrant  of,  in  supplementary  proceedings,  3307. 

I.  Actions  in  Which  Arrest  is  Authorized. 

to  recover  fine  or  penalty,  1279. 

for  personal  injury,  1279. 

for  injury  to  property,  1280. 

for  breach  of  promise  to  marry,  1282. 

for  misconduct  or  neglect  in  office  or  professional  employment, 

1282. 
to  recover  damages  for  fraud  or  deceit,  1282. 
to  recover  a  chattel,  1282. 
for  conversion,  embezzlement,  etc.,  in  fiduciary  capacity,  1284. 

factors  and  brokers,  1286. 

bankers,  1287. 

attorney,  1288. 

assignee  for  benefit  of  creditors,  1288. 

auctioneer,  1288. 
on  contract  based  on  fraud,  1288. 

what  constitutes  fraud,  1289,  4130. 

fraud  in  "contracting  or  incurring  the  liability,"  1290. 

fraudulent  conveyance  after  making  of  contract,  1292. 

intent  to  remove  or  dispose  of  property,  1294. 
to  recover  public  property,  1294. 
effect  of  joinder  of  causes  of  action,  1294. 

of  joinder  of  different  claims  or  demands  where  but  one 
cause  of  action  is  stated,  1295. 
as  dependent  on  extrinsic  facts,  1296. 
actions  on  judgments,  1298. 
foreign  judgments,  1299. 
on  submission  of  controversy,  36. 

II.  Who  May  be  Arrested. 

persons  brought,  enticed,  or  detained,  within  jurisdiction,  1301. 
officer  of  corporation,  1302. 
second  arrest,  1302. 

orders  in  different  courts,  1303. 

discharge  in  another  state,  1303. 

discharge  of  privileged  person,  1303. 


INDEX.  4369 

[references  are  to  pages.] 


ARREST— Cont'd. 


discharge  from  criminal  arrest,  1303. 
arrest  of  one  person  for  act  of  another — husband,  1304. 

principal  and  agent,  1304. 

co-partners,  1304. 
arrest  of  partner  by  his  co-partner,  1305. 
persons  exempt,  1305. 

females,  1305. 

lunatic,  idiot  or  infant,  1307. 

person  sued  in  representative  capacity,  1307. 

officers  in  courts,  247,  1308. 

party  to  another  action  or  proceeding,  1308. 

witnesses,  1309. 

electors,  1310. 

public  ministers,  ambassadors,  etc.,  1311. 

members  of  congress,  1311. 

members  or  officers  of  legislature,  1311. 

canal  officers,  1312. 

soldiers  of  United  States  army,  1312. 

marines,  1312. 

members  of  state  militia,  1312. 

police  officer  in  New  York  city,  1313. 

prisoner  en  route  to  destination,  1313. 
waiver  of  privilege,  1313. 

III.  The  Motion. 

court  or  judge  before  whom  to  move,  190,  1314. 
time  for  application,  1315,  4130. 
the  affidavit,  1316. 

where  order  depends  on  nature  of  action,  1317,  4130. 

where  right  to  arrest  depends  on  extrinsic  facts,  1318. 

statements  relevant  as  to  amount  of  bail,  1319. 

manner  of  stating  the  facts,  1319,  4130. 

aider  by  complaint  and  vice  versa,  1321,  4130. 

use  other  than  for  original  purpose,  1322. 

who  may  make,  1322. 

waiver  of  defects,  1322. 
the  complaint,  1323,  4130. 

amendment  of  complaint  as  condition  of  granting  order, 
1325. 
sufficiency  of  proof,  1325. 
undertaking  given  by  plaintiff,  1326. 

necessity,  1326. 

N.  Y.  Prac—  274. 


4370  INDEX. 

[REFERENCES    ARE   TO   PAGES.] 

ARREST— Cont'd. 

condition  and  amount,  1327. 

sureties,  1327. 

indorsement,  1328. 

amendment,  1328. 

extent  of  liability,  1328. 

actions  on  undertaking,  1329. 
filing  of  papers,  1331. 
time  for  decision  of  motion,  614. 

IV.  Order. 

contents,  1332. 

amount  of  bail,  1334. 

statement  of  grounds  of  arrest,  1335. 

indorsements,  1335. 

subscriptions,  1336. 

stay  of  judgment,  1336. 

extinguishment  by  issuance  of  body  execution,  1336. 

V.  Making  the  Arrest. 

execution  of  order  in  general,  1336. 

place  of  arrest,  1336. 

papers  to  be  delivered,  1337. 

method  of  accomplishing  arrest,  1337. 

re-arrest,  1338. 

VI.  Vacation  or  Modification  of  Order. 

motion  to  increase  security  given  by  plaintiff,  1339. 

reduction  of  bail,  1340. 

time  for  motion,  1341. 

court  or  judge  before  whom  to  move,  and  notice,  1342. 

motion  papers,  1343. 

motion  on  original  papers,  1343. 

affidavit  on  part  of  defendant,  1344. 
opposing  the  motion,  1344. 
scope  of  review,  1345. 
grounds  for  granting  or  refusing  order,  1347. 

failure  of  complaint  to  state  cause  of  action,  1347. 

want  of  jurisdiction  of  action,  1348. 

insufficiency  of  moving  affidavits,  1348. 

offer  to  perform  or  actual  performance,  1348. 

giving  bail,  1348. 
renewal  of  motion  to  vacate,  1349. 
vacation  on  stipulation  not  to  sue,  1349. 


INDEX.  4371 

[REFERENCES    ARE    TO    PAGES.] 


ARREST— Cont'd. 


VII.  Discharge  From  Arrest. 
privileged  person,  1349. 

witness,  1350. 
lapse  of  time,  1350. 

institution  of  insolvency  proceedings,  1350. 
supersedeas,  1351,  4130. 
appeal  from  order,  1353. 
power  of  county  judge,  190. 

VIII.  Bond  for  Jail  Liberties. 

right  to  liabilities  on  giving  undertaking,  1376. 
undertaking,  1377. 

procedure  where  surety  is  insufficient,  1378. 
surrender  of  prisoner  by  his  sureties,  1378. 
escape,  1378. 

defenses  to  action  on  undertaking,  1379. 
effect  of  judgment  against  sheriff  for  escape,  1379. 
extent  of  recovery  in  action  by  sheriff,  1380. 
action  by  original  plaintiff,  1380. 

ASSAULT  AND  BATTERY, 

time  within  which  to  sue,  482. 

cause  of  action  as  arising  out  of  same  transaction  as  one  for  slan- 
der, 69. 
costs  as  matter  of  right,  2914. 
abatement  on  death  of  party,  2066. 

ASSESSMENTS, 

jurisdiction  of  supreme  court  to  review,  159. 

of  damages  by  jury  after  trial,  2361. 

of  damages,  where  judgment  by  default,  2863. 

of  damages  after  remittitur  from  court  of  appeals,  2867. 

payment  of,  on  judicial  sale,  3242. 

ASSIGNMENTS, 

of  judgment,  see  "Judgments." 

jurisdiction  over  assignment  of  property  outside  of  state,  128. 

assignee  of  judgment  as  subject  to  attorney's  lien,  303. 

right  of  assignee  to  sue,  376-380. 

right  of  assignor  to  sue,  379,  380. 

right  of  assignee  of  part  of  a  chose  of  action  to  sue,  54. 

power  of  assignee  of  debt  secured  by  undertaking  to  sue,  688. 

joinder  of  assignor  and  assignee  as  plaintiffs,  408. 


4372  index. 

[REFERENCES  are  to  pages.] 

ASSIGNMENTS— Cont'd. 

assignability  of  things  in  action,  377-379. 

counterclaims  in  actions  by  assignees,  981. 

right  of  assignee  to  set  up  statute  of  limitations,  454. 

assignment  with  intent  to  defraud  as  ground  of  attachment,  1398. 

exemption  of  assignee  from  liability  to  arrest,  1307. 

pending  suit  as  requiring  substitution  of  assignee,  2073. 

right  to  attach  property  in  hands  of  assignee,  1410,  1413. 

right  of  assignee  to  order  of  arrest,  1276. 

right  of  assignee  to  move  to  vacate  attachment,  1513. 

right  of  assignee  to  sue  on  undertaking  to  discharge  attachment^ 

1510. 
requiring  assignee  to  give  security  for  costs,  1888,  1895. 
substitution  of  assignee  on  death  of  party,  2087. 
action  to  set  aside  as  election  of  remedy,  3436. 
delivery  of  assigned  property  in  supplementary  proceedings,  3332. 
effect  of  vacation  of  judgment  after,  2831. 
filing  to  obtain  sheriff's  deed  on  execution  sale,  3158. 
assignor  and  assignee  as  defendants  in  creditor's  suit,  3615. 
liability  of  assignee  for  costs  of  action,  2944. 
liability  of  assignor  for  costs,  2945. 
leave  to  assignee  to  sue  on  judgment,  2842. 
notice  to  assignee  of  motion  to  vacate  judgment,  2827. 

ASSIGNMENTS  FOR  BENEFIT  OF  CREDITORS, 
jurisdiction  of  supreme  court,  159. 
jurisdiction  of  county  courts,  165. 
as  special  proceedings,  15,  16. 
as  affecting  attorney's  lien,  291. 

right  of  assignee  to  intervene  as  party  in  pending  action,  431. 
power  of  assignee  to  make  payment  which  will  take  case  out  of 

statute  of  limitations,  529. 
place  of  trial  of  action  to  set  aside  assignment,  352. 
fraud  in  assignment  as  ground  of  attachment,  1403. 
liability  of  assignee  to  arrest  in  civil  action,  1288. 
pending  suit  as  requiring  substitution  of  assignee,  2074. 
preference  on  calendar  where  assignee  is  a  party,  1676. 
right  to  attach  property  in  hands  of  assignee,  1414. 
temporary  injunction  to  prevent  disposition  of  property,  1565. 
as  divesting  execution  lien  on  personal  property,  3101. 
effect  on  supplementary  proceedings,  3328. 
liability  of  assignee  for  costs,  2947,  2951. 

ASSISTANCE,  WRIT  OF   (see  "Writ  of  Assistance"). 


index.  4373 

[references  are  to  pages.] 

ASSOCIATIONS, 

name  of  in  summons,  717. 

residence  of  as  determining  place  of  trial,  363. 

setting  out  by-laws  according  to  legal  effect  in  pleading,  825. 

mode  of  serving  summons  in  action  against,  750. 

right  to  attach  property  of,  1384. 

notice  of  motion  for  temporary  injunction  where  it  will  suspend 

business,  1572. 
appointment  of  receiver  in  supplementary  proceedings,  3259. 

ASSUMPSIT   (see,  also,  "Money  Had  and  Received,"  "Goods  Sold  and 
Delivered"), 
nature  of  common  law  action,  23. 
election  between  remedies,  43. 

ATTACHMENT. 

nature  and  purpose  of  remedy,  1382. 

election  between  order  of  arrest  and  attachment,  1269. 

construction  of  statutes,  1382. 

discretion  of  court  and  review  thereof,  1383. 

who  may  obtain,  1383. 

persons  whose  property  is  attachable,  1384. 

who  may  grant  warrant,  1385. 

time  when  attachment  may  be  granted,  1385,  4131. 

successive  attachments,  1388. 

actions  in  which  warrant  may  be  issued,  1388. 

action  based  on  breach  of  contract,  1390. 

action  for  conversion,  1392. 

action  for  injury  to  property  or  person,  1392. 
grounds,  1393. 

defendant  a  foreign  corporation,  1394. 

nonresidence  of  defendant.  1394. 

departure  from,  or  concealment  within,  state  to  defraud  credit- 
ors, 1397. 

removal,  assignment,  or  secretion  of  property,  1398,  4131. 

false  statements  as  to  financial  responsibility,  1404. 

absence  from  state  for  six  months,  1404. 

acts  of  public  officers,  1404. 
preference  on  calendar  where  property  of  defendant  has  been  at- 
tached, 1680. 
necessity  of  obtaining  leave  to  sue  to  recover  property  attached  or 

value  thereof,  87. 
on  submission  of  controversy,  36. 

effect  of  attachment  outside  of  state  in  determining  whether  pend- 
ency of  action  is  matter  of  abatement,  51,  52. 
time  for  decision  on  motion,  614. 


4374 


INDEX. 


[references  are  to  pages.] 
ATTACHMENT— Cont'd. 

I.  Property  Which  May  be  Attached. 

real  property,  1406. 

property  owned  jointly,  1407. 

property  of  tenants  in  common,  1407. 

partnership  property,  1407,  4131. 
choses  in  action,  1408,  4131. 
stock  of  domestic  corporation,  1411. 
stock  of  foreign  corporation,  1412. 
chattels  mortgaged,  1412. 
chattels  in  hands  of  agent,  1413. 
property  in  hands  of  trustee  or  assignee,  1413. 
pledged  property,  1414. 
property  in  custodia  legis,  1414. 
property  in  hands  of  receiver,  1641. 
code  exemptions,  1415. 
personal  property  exempt,  1417. 

necessaries  not  exceeding  $250,  1419. 
wages,  1422. 

pensions,  pay,  bounty,  equipment,  etc.,  of  soldier,  1423,  4131. 
insurance  money,  1424. 
burying  ground,  1425. 
homestead,  1425. 

proceeds  of  exempt  property,  1428. 
waiver  of  exemption,  1428. 

exemption  of  real  property,  1430,  4131. 
enforcement  of  exemption,  1430. 

II.  Affidavits. 

who  may  make,  1431. 

contents  in  general,  1432. 

averments  on  information  and  belief,  1434. 

averments  on  personal  knowledge,  1437. 

averment  as  to  cause  of  action,  1440,  4132. 

statement  as  to  damages,  1442,  4132. 

statement  as  to  sum  due,  1443. 
averment  of  grounds  for  attachment,  1445,  4132. 

nonresidence,  1446. 

defendant  a  foreign  corporation,  1448,  4132. 

departure  from  state,  or  concealment,  1449,  4132. 

fraudulent  transfer  of  property,  1449. 
hearing  of  motion,  1452. 
filing,  1453. 


index.  4375 

[references  are  to  pages.] 
ATTACHMENT— Cont'd. 

defects  and  amendments,  1453,  4132. 
waiver  of  objections,  1454,  4132. 

III.  Undertaking. 
necessity,  1454. 
amount,  1455. 

increasing  amount,  1455. 
sureties,  1456. 
validity,  1456. 
filing,  1457. 
amendments,  1457. 
action  on  undertaking,  1457. 

defenses,  1458. 

amount  of  recovery,  1458. 

IV.  Warrant. 

teste  and  signature,  1460. 

direction,  1460. 

subscription,  1460,  4132. 

contents,  1461. 

number  of,  1463. 

reducing  amount  of,  1463. 

return,  1463. 

defects  and  amendments,  1464,  4132. 

who  may  grant,  190,  234. 

V.  Levy,  Custody  of  Property,  and  Sale. 

mode  of  making  levy,  1464,  4133. 
successive  levies  under  same  writ,  1471. 
powers  and  duties  of  officer  making  levy,  1471. 

indemnity,  1472. 

extent  of  levy,  1473. 

return,  1474. 
inventory,  1474. 
custody  of  sheriff,  1475. 

receiptors,  1477. 
sale,  1478. 

proof  of  levy  to  obtain  judgment  by  default,  2859. 
effect  of  levy,  1479. 
implied  power  of  attorney  to  direct  as  to,  271. 

VI.  Lien- 
accrual,  1481,  4133. 
extent,  1482. 
duration,  1482. 
priorities,  1483,  4133. 


4376  INDEX. 

[references  are  to  pages.] 
ATTACHMENT— Cont'd. 

VII.  Claims  of  Third  Persons. 
presentation,  1485. 
claim  to  vessel,  1487. 

VIII.  Proceedings  in  Aid  of  an  Attachment. 
action  to  recover  property  or  debts,  1491,  4133. 
action  in  nature  of  creditors'  suits,  1493. 
action  by  plaintiff  and  sheriff  jointly,  1496,  4133. 
certificate  and  examination  of  third  person,  1498. 

order,  1499. 

scope  of  examination,  1501. 
subpoena  duces  tecum,  1502. 
second  order,  1503. 

IX.  Discharge  of  Property  from  Attachment. 

application,  1503. 
undertaking,  1504,  4133. 
application  by  partners,  1508. 
discharge  of  vessel,  1510. 
payment  of  sheriff's  fees,  1510. 
order,  1510. 
actions  on  undertaking,  1510. 

X.  Vacation  or  Modification. 

who  may  move,  1513. 

where  to  move,  1514. 

grounds,  1515. 

motion,  1516,  4134. 

notice  of  motion,  1520,  4134. 

motion  papers,  1521. 

second  motion,  1526. 

order,  1527. 

vacation  by  operation  of  law,  1528. 

collateral  attack,  1530. 

motion  as  waiver  of  objections,  812. 

X.  Junior  Warrants. 
levy,  1531. 

attachment  of  vessel,  1532. 
actions  in  behalf  of,  1533. 
rights  of  third  and  subsequent  attaching  creditors,  1533. 

XII.  Procedure  After  Dissolution. 

restoration  of  property  to  defendant,  1534,  4134. 
substitution  of  defendant  in  actions,  1535. 


index.  4377 

[references  are  to  pages.] 

ATTACHMENT— Cont'd. 

cancelling  notice,  attaching  real  property,  1536. 
return  of  warrant,  1536. 

XIII.  Execution  Against  Attached  Property. 
to  whom  directed,  1537. 

by  whom  executed,  1537. 
contents,  1537. 
leave  to  issue,  1539. 
enforcement,  1539. 

XIV.  Wrongful  Attachment. 
invalidity  of  warrant,  1543. 
persons  liable,  1544. 

joint  and  several  liability,  1545. 
place  of  trial,  358. 
actions,  1546. 

defenses,  1546. 

pleading,  parties,  damages,  1547. 
substitution  of  indemnitors  in  action  against  officer,  1548. 

ATTORNEY  GENERAL, 

necessity  of  obtaining  leave  to  sue  in  action  by,  87. 

ATTORNEYS  AT  LAW    (see,  also,  "District  Attorneys"), 
champerty,  see  "Champerty  and  Maintenance." 
maintenance,  see  "Champerty  and  Maintenance." 
effect  of  advice  of  counsel,  see  "Advice  of  Counsel." 
distinction  between  attorney  at  law  and  attorney  in  fact,  240. 
general  nature  of  vocation,  239. 
as  officer  of  court,  240. 
residence,  241. 
law  clerks,  241. 
law  partnerships,  241. 

validity  of  proceedings  carried  on  by  one  not  a  lawyer,  242. 
recovery  of  damages  for  misconduct,  242. 

treble  damages,  242. 
admission  to  practice  and  registration,  243. 
application  for  admission  to  bar  as  special  proceeding,  16. 
taking  oath  of  office,  244. 
registration  of  attorneys,  246,  4058. 
right  to  appeal,  246. 
disabilities  and  disqualifications,  247. 

acting  for  both  prosecution  and  defense,  248. 
liabilities  to  third  persons,  248,  4058. 


43TS  INDEX. 

[references  are  to  pages.] 
ATTORNEYS  AT  LAW— Cont'd. 

repayment  of  moneys  received,  249,  4058. 
liability  to  persons  employed  for  client,  249. 
liability  on  purchase  at  judicial  sale,  250. 

exemptions,  247,  1288,  1308. 

privileged  communications,  247. 

prohibition  against  paying  to  procure  claims  to  sue  on,  265,  266. 

prohibition  against  purchase  of  things  in  action  for  purpose  of  suit,. 
264,  265. 

qualifications  for  office  of  judge,  221. 

power  of  clerk  of  court  to  practice  as  attorney,  311. 

assigning  attorney  on  granting  leave  to  sue  as  a  poor  person,  1878. 

absence  or  sickness  as  ground  for  continuance,  2025. 

closing  argument  to  jury,  2302. 

counsel  fees  as  recoverable  on  undertaking  to  procure  injunction, 
1560. 

enjoining  where  not  parties,  1560. 

liability  for  costs  until  security  is  given,  1908. 

mode  of  signing  offer,  1993. 

presence  during  charge  to  jury,  2339. 

presence  when  verdict  is  received,  2357. 

power  of  receiver  to  employ,  1646. 

reference  in  action  to  recover  for  services,  2564. 

reference  on  petition  to  compel  payment  to  client,  2572. 

absence  as  ground  for  new  trial,  2713. 

absence,  ignorance,  etc.,  of,  as  ground  for  opening  default,  2870. 

name  of  in  docket  of  judgment,  2792. 

vacating  judgment  because  of  unauthorized  appearance,  2819. 

failure  to  put  in  evidence  as  ground  for  vacating  judgment,  2820. 

enforcement  of  orders  for  payment  of  money  by,  or  to,  by  execu- 
tion, 3061. 

who  may  be  employed  by  receiver  in  supplementary  proceedings, 
3374. 

misconduct  as  ground  for  new  trial,  2699. 

review  of  remarks  before  jury  as  dependent  on  inclusion  of  remarks 
in  case,  2668. 

entry  of  judgment  after  disbarment,  2783. 

liability  for  costs,  2948,  2959. 

notice  to,  of  motion  to  vacate  judgment,  2827. 

witness  fees  as  disbursements,  2980. 

subscription  of  name  to  pleadings,  823. 

duty  to  forthwith  file  bond  or  undertaking  given  in  action,  682. 

service  of  summons  on  attorney  for  foreign  corporation,  749. 

service  of  subpoena  duces  tecum  on,  1969. 


index.  4379 

[references  are  to  pages.] 
ATTORNEYS  AT  LAW— Cont'd. 

service  of  papers  on,  261,  655. 

service  of  papers  by  mail  on,  660. 

effect  of  agreement  of,  as  to  place  for  making  motion,  597. 

requiring  attorney  t.o  pay  costs  on  striking  scandalous  matter  from 
pleading,  1069. 

default  or  negligence  of,  as  cured  by  verdict,  report,  or  decision, 
703. 

when  statute  of  limitation  begins  to  run  against,  491. 

power  of  judge  to  practice  law,  223. 

instructing  witness  not  to  answer  as  criminal  contempt,  321. 

punishment  for  advising  client  to  disobey  order,  325. 

absence  of  warrant  of  attorney  as  cured  by  verdict,  report,  or  de- 
cision, 703. 

mistakes  of  as  amendable,  705. 

liability  of  client  for  contempt  for  his  attorney's  acts,  341. 

I.  Disbarment 

grounds,  250,  4058,  4059. 

misdemeanors,  251. 

conviction  of  felony,  252. 

loss  of  moral  character,  253. 

acts  committed  by  attorney  as  a  party,  253. 

license  obtained  without  authority,  253. 
proceedings,  253,  4059. 

district  attorney  as  prosecutor,  254. 

evidence,  254. 

punishment,  254. 
effect  of,  254. 
costs,  255. 

II.  General  Relation  With  the  Client. 

attorney  as  agent,  255. 

creation  of  relation,  255,  4059. 

knowledge  of  attorney  as  notice  to  his  client,  256,  4059. 

compelling  disclosure  of  client's  address,  256. 

dealings  between  attorney  and  client,  257,  4059. 

acquiring  subject-matter  of  suit,  257. 

malpractice,  257,  4060. 

compensation,  258,  4060. 

title  to  costs,  259,  4061. 
termination  of  relation  by  act  of  attorney,  260. 
termination    of   authority   by   reason   of  extrinsic  events,   261, 
4061. 

transfer  of  cause  of  action  or  judgment,  262. 


4380  INDEX. 

I  REFERENCES    ARE   TO   PAGES.] 

ATTORNEYS  AT  LAW— Cont'd, 
death  of  client,  262. 
lapse  of  time,  262. 
nature  of  action  for  failure  to  pay  over  moneys,  29. 
causes  of  action  for  violation  of  agreement  and  for  wilful  de- 
lay as  arising  out  of  same  transaction,  69,  7D. 

III.  Authority. 

presumption  of,  266,  4062. 

right  to  appeal,  3659. 

compelling  disclosure  of  authority,  267. 

in  ejectment,  267. 

matters  considered  on  motion,  268. 

sufficiency  of  order,  268. 

compliance  with  order,  268. 
exclusive  authority  of  attorney,  268. 
implied  powers  of  an  attorney,  269,  4062. 

stipulations,  270,  4062. 

power  to  compromise  or  release,  270. 

submission  to  arbitration,  270. 

consent  to  reference,  271. 

discontinuance  of  action,  271,  2112. 

employment  of  third  persons,  271,  4062. 

issuance  of  execution,  3064. 
to  agree  to  increase  the  costs,  2903. 
to  institute  supplementary  proceedings,  3258. 
to  satisfy  judgment,  2839. 
to  discharge  imprisoned  debtor,  3211. 

to  stipulate  as  condition  of  opening  default  judgment,  2878. 
to  consent  to  vacate  a  judgment,  2815. 
to  direct  sheriff  as  to  enforcement  of  execution,  3088. 

directing  levy  of  writ  or  ordering  arrest,  271. 

authority  to  receive  payment,  272. 
who  may  raise  objection  of  want  of  authority,  272. 
exclusive  right  to  enter  appearance,  805. 
effect  of  appearance  without  authority,  272,  817. 
right  to  become  sureties,  673,  1360. 
power  to  make  affidavit,  546,  1432,  1802. 
power  to  make  affidavit  of  merits,  561. 
power  to  make  an  affidavit  in  action  with  which  he  is  connected, 

549. 
power  to  authorize  sheriff  to  discharge  person  imprisoned,  261. 
power  to  sue  in  his  own  name,  385,  387,  390. 
power  to  verify  pleadings,  892,  petition,  1846. 
power  to  institute  supplementary  proceedings,  261. 


INDEX.  4381 

[references  are  to  pages.] 
ATTORNEYS  AT  LAW— Cont'd. 

IV.  Substitution  of  Attorneys. 

right,  necessity,  and  grounds,  273. 

removal  on  court's  own  motion,  274. 

discharge  for  cause,  274. 

grounds  for  refusing,  275. 

necessity,  275. 

manner  of  substitution,  275. 

order  of  court  and  notice,  275. 

after  judgment,  276. 
court  in  which  to  move,  277. 
notice.  277. 
nature  of  proceeding,  278. 

reference  to  determine  attorney's  compensation,  278,  2572, 
4062. 
just  terms,  278,  4062. 

securing  claim  for  services  in  other  action  or  court,  279. 

right  of  attorney  to  retain  papers,  279. 

where  substitution  is  for  cause,  280. 
enforcement  of  terms,  280. 
waiver  of  objections,  280. 
effect  of  giving  bond  for  payment,  280. 
proceedings,  where  attorney  becomes  unable  to  act,  280. 
death,  removal  or  suspension  of  attorney,  280. 
notice,  281. 

effect  of  failure  to  comply  with  notice,  281. 

effect  of  want  of  notice,  281. 
effect  of,  282. 

rights  of  new  attorney,  282. 
rights  of  old  attorney,  282. 

V.  Summary  Remedies  of  Client. 

grounds  for  refusing,  283,  4063. 
necessity  of  professional  employment,  284. 
who  may  move,  285. 
procedure,  286. 

demand,  287. 

parties,  287. 

evidence,  287. 

VI.  Attorney's  Lien. 
nature  and  kinds  of,  288. 

right  to  independent  of  agreement,  289. 
agreement  for  and  effect  thereof,  289. 


4382 


INDEX. 


1  REFERENCES    ARE   TO    PAGES.] 

ATTORNEYS  AT  LAW— Cont'd. 

right  to  general  lien  on  breach  of  contract,  290. 
existence  of  general  lien  as  defense  or  counterclaim,  290. 
proceeding  to  enforce  as  special  proceeding,  16. 
facts  precluding  lien,  290. 

death  of  client,  290. 

assignment  for  creditors  or  appointment  of  receiver,  291. 
lien  for  services  rendered  to  executors  or  administrators,  291. 
extent  of  lien,  291. 

services  rendered  in  other  matters,  292,  4063. 
persons  entitled  to  lien,  292. 
time  when  lien  attaches,  293,  4063. 
property  subject  to  special  lien,  293. 

necessity  of  possession,  294. 

cause  of  action,  294,  4063. 

reports,  295. 

collateral  securities,  295. 

proceeds,  296. 
property  subject  to  general  lien,  296,  4063. 
settlement  between  parties  as  affecting  lien,  297,  4063. 

notice  of  lien,  298,  4063. 

effect  on  rights  of  attorney  for  defendant,  299. 

procedure  in  case  of  settlement  before  judgment,  299,  4"063. 

procedure  in  case  of  settlement  after  judgment,  301,  4064. 

laches  as  bar  to  motion  to  set  aside  settlement,  3D2. 
right  of  attorney  to  appeal  or  resist  dismissal  of  appeal,  302. 
priority  of  lien,  302. 

as  against  right  of  set-off  against  client,  303,  4064. 
waiver  or  loss  of  lien,  305. 
estoppel  to  assert  lien,  305. 
enforcement  of  lien,  306,  4065. 

notice  to  client,  307. 

reference,  307,  4065. 

in  whose  name  action  to  enforce  judgment  for  costs,  307. 

execution  and  supplementary  proceedings,  307. 

laches,  307. 

bar  by  limitations  of  action  for  services  as  precluding,  452. 

AUCTIONEERS, 

liability  to  arrest  in  civil  action,  1288. 

AUTHENTICATION, 

of  jurat  of  affidavit,  540. 

of  officer's  certificate  where  affidavit  is  taken  without  state,  556. 

AWARD  (see  "Arbitration  and  Award"). 


index.  4383 

[references  are  to  pages.] 

B. 

BAIL  (see,  also,  "Arrest"), 
definition  and  kinds,  1354. 
right  to  give,  1354. 
amount,  1355. 

amount  of  as  fixed  by  order  of  arrest,  1334. 
reduction  of  bail,  1340. 

as  waiver  of  right  to  move  to  vacate  order  of  arrest,  1348. 
the  undertaking,  1355. 
conditions,  1356. 
common-law  undertaking,  1357. 
preliminary  examination  and  approval  of  undertaking,  1358. 
delivery  of  papers  to  plaintiff's  attorney,  1358. 
acceptance  or  rejection  of  bail,  1359. 
who  may  be  bail,  1360. 
qualifications,  1360. 
fictitious  bail  as  civil  contempt,  325. 
justification  of  bail,  1360. 
liability  of  sheriff  as  bail,  1361. 
liability  of  bail  to  sheriff,  1362. 
exoneration  of  bail,  1363. 

death  of  defendant,  1364. 
discharge  of  defendant  from  liability,  1364. 
surrender  of  defendant,  640,  1365.  4130. 
insolvency  of  defendant,  1368. 
accrual  of  liability,  1368. 

undertaking  given  in  action  to  recover  chattel,  1369 
undertaking  given  as  substitute  for  ne  exeat,  1370. 
imprisonment  of  defendant  on  criminal  charge,  1370. 
action  against  bail,  1371. 
defenses,  1371,  4131. 
extent  of  recovery,  1373,  4131. 
deposit  in  lieu  of  bail,  1374. 

where  directed  to  be  paid  to  third  person,  1375. 
statements  in  affidavit  for  arrest  relevant  as  to  amount  of  bail,  1319. 

BAILMENT   (see,  also^  "Pledges"), 

custody  of  officer  of  goods  seized  on  execution,  3118. 
liability  of  sheriff  as  bailee  for  hire,  1476. 

effect  of  bailee  giving  certificate  to  sheriff  that  he  holds  no  goods 
for  benefit  of  bailor,  1499. 

BANK  BILLS, 

statute  of  limitations,  442. 


438i  INDEX. 

I  REFERENCES   AKE   TO   PAGES.] 

BANKRUPTCY   (see,  also,  "Insolvency"), 

jurisdiction  of  actions  as  between  state  and  federal  courts,  142,  143. 

necessity  of  pleading  discharge,  954. 

pleading  discharge  by  supplemental  answer,  1054. 

discharge  as  releasing  sureties  on  undertaking  given  on  appeal,  684. 

discharge  as  exonerating  bail,  1364. 

right  of  assignee  to  intervene  as  party  in  pending  action,  431. 

defense  in  action  on  undertaking  to  discharge  attachment,  1508. 

pending  suit  as  requiring  substitution  of  assignee,  2074. 

preference  on  calendar  where  trustee  is  a  party,  1676. 

requiring  trustee  to  give  security  for  costs,  1888,  1894. 

stay  of  action  on  application  for  discharge  as  bankrupt,  1919. 

discharge  of  judgment  against  bankrupt,  2834. 

discharge  as  ground  for  opening  default  judgment,  2870. 

discharge  as  ground  for  staying  proceedings  on  execution,  3191. 

discharge  in  as  precluding  supplementary  proceedings,  3272. 

adjudication  as  staying  time  to  institute  supplementary  proceed- 
ings, 3260. 

power  of  trustee  to  reach  surplus  income  of  trust,  3403. 

lien  created  by  creditor's  suit  where  judgment  docketed  before 
bankruptcy  proceedings,  3417,  3420. 

liability  of  assignee  for  costs,  2947,  2950. 

execution  on  judgment  against,  3065. 

BANKS    (see,  also,  "National  Banks"), 

right  of  banker  to  sue  alone  as  trustee  of  express  trust,  390. 
when  limitations  begin  to  run  against  action  to  recover  deposits, 

492-494. 
liability  of  banker  to  arrest  in  civil  action,  1287. 
lien  on  deposit  as  superior  to  attachment  lien,  1483. 
right  to  interplead  claimant  of  fund,  1863. 
right  to  attach  money  in  bank  as  belonging  to  debtor,  1411. 

BILL  OP  DISCOVERY, 

in  equity,  1825. 
BILL  OP  EXCEPTIONS  (see  "Case"). 
BILL  OP  INTERPLEADER  (see  "Interpleader"}. 
BILL  OP  ITEMS  (see  "Copy  of  Account"). 
BILL  OF  PARTICULARS  (see,  also,  "Copy  of  Account"), 

as  distinguished  from  copy  of  account,  857,  4093. 

1904  amendment  of  statute,  4093. 

when  required,  862,  4093. 


INDEX.  4385 

[references  are  to  pages.] 
BILL  OF  PARTICULARS— Cont'd. 

when  awarded  in  specific  actions  and  as  to  specific  matters,  865, 
4096. 

actions  ex  contractu  in  general,  865,  4096. 

actions  ex  delicto,  866,  4096. 

actions  based  on  statute,  869. 

actions  relating  to  real  property,  869,  4097. 

actions  of  replevin,  869. 

actions  for  divorce,  870,  4097. 

actions  on  account  stated,  870. 

actions  to  try  title  to  office,  870. 
application  for  order,  870,  4097. 

sufficiency  of  affidavits,  873,  4099. 
decision  of  the  motion,  875,  4099. 
order,  876,  4099. 
contents  of  bill  of  particulars,  878. 

verification,  878. 

amendments,  879. 
more  specific  bill,  879,  4099. 
penalty  for  disobedience,  880. 

motion  to  make  pleading  more  certain  as  remedy,  1064. 
second  motion  for  bill,  639,  640. 

discovery  and  inspection  to  enable  plaintiff  to  furnish,  1836. 
examination  before  trial  to  enable  adverse  party  to  furnish,  1783. 
claim  for  inspection  as  part  of  motion  for  bill,  1845. 
recovery  in  excess  of  amount  stated  in,  2766. 
inclusion  in  judgment  roll,  2789. 
effect  of  bill,  880,  4100. 

BILL  OP  REVIVOR, 

motion  as  substitute  for,  2081. 

BILLS  AND  NOTES  (see  "Negotiable  Instruments"). 

BOARD  OP  TRADE   (see,  also,  "Brokers"), 

seat  as  subject  to  supplementary  proceedings,  3261,  3365. 

BODY  EXECUTION   (see  "Execution  Against  the  Person"). 

BONA  FIDE  PURCHASERS, 

necessity  of  pleading  as  defense,  955. 
title  acquired  at  execution  sale,  3149. 
at  judicial  sale,  3219. 

title  as  against  receiver  in  supplementary  proceedings,  3363. 
as  affected  by  prior  delivery  of  execution,  3102. 
N.  Y.  Prac—  275. 


4386  INDEX. 

[references  are  to  pages.] 

BONDS   (see.  also,  "Undertakings,"  "Negotiable  Instruments"), 
necessity  of  leave  to  sue  in  actions  on,  87. 
sufficiency  of  pleading,  854. 
how  attached,  14G7. 
right  to  attach  railroad  bonds,  1411. 
judgment  against  part  of  defendants,  2760. 
of  receiver  in  supplementary  proceedings,  3356. 
for  payment  of  costs,  in  action  by  receiver  in  supplementary  pro- 
ceedings, 3373. 

BOOKS, 

discovery  and  inspection,  1833. 
order  to  produce  and  subpoena  duces  tecum,  1967. 
failure  to  produce  in  supplementary  proceedings,  as  a  contempt, 
3336. 

BOUNTIES, 

as  exempt,  1423. 

BREACH  OF  PROMISE  TO  MARRY, 

action  ex  contractu  or  ex  delicto,  32. 
pleading  mitigating  circumstances,  963. 
right  to  order  of  arrest,  1282. 
abatement  of  action  by  death  of  party,  2067. 
body  execution,  3198. 

BREACH  OF  THE  PEACE, 
criminal  contempt,  321. 

BRIEFS, 

in  court  of  appeals,  see  "Court  of  Appeals." 
in  appellate  division,  see  "Appellate  Division." 

BROKERS  (see,  also,  "Board  of  Trade"), 
interpleader  in  actions  by,  1864. 
right  to  arrest  in  actions  against,  1284. 
examination  of  broker  or  his  principal  as  party  before  trial,  1784. 

BURDEN  OF  PROOF, 

what  constitutes,  2221. 

charge  as  to,  2330. 

to  show  that  property  is  exempt,  1430. 

on  motion,  608. 

motion  for  reference,  2577. 

motion  to  open  default  judgment,  2875. 

BURIAL  GROUNDS  (see  "Cemeteries"). 


index.  4387 

[REFERENCES    ARE    TO    PAGES.] 

c. 

CALENDAR  (see,  also,  "Notice  of  Trial,"  "Note  of  Issue,"  "Preferred 
and  Deferred  Causes"), 

trial  or  special  term  calendar,  1661,  4137. 

note  of  issue,  1668. 

new  notice  of  trial  or  note  of  issue  for  succeeding  term,  1670. 

passing  case  on  calendar,  1670,  4138. 

bringing  issue  to  trial,  1671. 

taking  inquests  out  of  order  on  calendar,  1672,  4138. 

order  for  trial  of  issues,  1672. 

eight  days'  notice  of  questions  for  argument,  1672. 

practice  in  New  York  City  Court,  1672. 

short  cause  calendar,  1681. 

dismissal  of  action  for  failure  of  plaintiff  to  proceed,  2124. 

condition  of,  in  determining  whether  place  of  trial  shall  be  changed, 

1932,  1936. 
retaining  cause  on  calendar  after  juror  is  withdrawn,  2278. 
arrangement  of  issues  of  fact  and  of  law,  2167. 
retention    of    place    on    calendar    notwithstanding    amendment    of 

pleading,  1043. 
failure  to  reply  as  authorizing  striking  from  calendar,  992. 
term  fees,  2973. 

in  appellate  division,  see  "Appellate  Division." 
in  court  of  appeals,  see  "Court  of  Appeals." 

CANALS, 

exemption  of  canal  officers  from  arrest,  1312. 

CANCELLATION  OF  WRITTEN  INSTRUMENTS, 

causes  of  action  to  cancel  bond  and  to  recover  money  delivered  as 

security  as  arising  out  of  the  same  transaction,  68. 
jurisdiction  where  lands  lie  in  another  state,  128. 
place  of  trial  of  action  to  set  aside  real  estate  mortgage,  352. 
sheriff's  deed,  3159. 
return  of  execution,  3186. 
docket  of  judgment,  2837. 
notice  attaching  real  property,  1536. 
basis  of  computing  extra  allowance,  3015. 

CAPACITY  TO  SUE, 

raising  objection  by  motion  on  trial,  2201. 

CAPTION, 

of  order,  619. 
of  answer,  942. 


43SS  INDEX. 

I  REFERENCES    ARE   TO   PAGES.] 

CAPTION— Cont'd. 

of  report  of  referee,  2616. 

amendment  of,  633. 

right  to  demur  to  caption  of  complaint,  995. 

CARRIERS, 

necessity  of  demand  before  suing  carrier,  81,  82. 
actions  against  as  ex  contractu  or  ex  delicto,  31,  32. 
who  may  sue  carrier,  385,  386. 

CASE, 

nature  and  purpose,  2652. 

as  distinguished  from  bill  of  exceptions,  2652. 

necessity,  2653. 

on  moving  for  new  trial,  2655. 

to  perfect  an  appeal,  2654. 
in  court  of  appeals,  3795. 
time  for  making  and  service,  2656. 

extension  of  time  to  serve  case,  2658. 

relief  from  default,  2659. 

effect  of  failure  to  serve  case,  2659. 
amendments,  2659. 

form,  2660. 

to  insert  evidence,  2660. 
contents,  2661. 

evidence,  2663,  4166. 

exceptions,  2667. 

judge's  charge,  2668. 

remarks  of  counsel,  2668. 

motion  and  ruling  thereon,  2661. 

affidavits,  2669. 

copy  of  account,  2669. 

judgment  roll,  2662. 
settlement,  2670. 

who  may  settle,  2671. 

powers  and  duties  of  judge  or  referee,  2671,  4166. 

effect  of  failure  to  notice  for  after  service  of  amendments,  2674. 

order  as  appealable,  3628. 
signature  and  filing,  2675. 

opening  default  in,  2675. 
certification,  2676. 

certificate  that  case  contains  all  the  evidence,  2677. 

conclusiveness  of  certificate,  2678. 
resettlement,  2679. 

of  court's  own  motion,  2679. 


index.  4389 

[REFERENCES    ARE    TO    PAGES.] 

CASE— Cont'd. 

power  of  appellate  division,  2681. 

order  as  appealable,  2682,  3628. 
effect  as  stay,  2682. 

on  motion  at  special  term  for  new  trial,  2731. 
on  hearing  of  exceptions  by  appellate  division,  2725. 
as  part  of  judgment  roll,  2788. 
amendment  in  appellate  court,  2682. 
amount  of  costs  for  making  and  serving,  2971. 

CAUSE  OF  ACTION, 

joinder  of  causes,  see,  also,  "Joinder  of  Causes  of  Action." 
splitting  cause,  see,  also,  "Splitting  Cause  of  Action." 
definition,  52. 

as  distinguished  from  object  of  action,  53. 
as  distinguished  from  subject  of  action,  53. 
legal  and  equitable  causes,  18. 

prayer  for  relief  as  determining  whether  legal  or  equitable,  928. 
actions  ex  contractu  as  distinguished  from  actions  ex  delicto,  23. 
in  counterclaim,  971. 

when  limitation  runs  against  continuing  causes  of  action,  487,  488. 
statement  of  in  complaint,  922. 

motion  on  trial  to  dismiss  complaint  for  failure  to  state,  1081. 
power  to  compel  election  on  trial  between  two  causes,  1084. 
place  of  trial  as  governed  by  place  where  cause  arose,  5B4. 
setting  forth  in  complaint  a  single  cause  in  different  counts,  837. 
failure  to  state  as  ground  of  demurrer,  999. 
identity  of  cause  of  action  where  two  suits  are  pending,  48. 
attorney's  lien  on,  294,  296. 
when  accrues,  485  et  seq. 

statement  of  two  or  more  separate  causes  in  complaint,  926. 
motion  to  compel  separation  of  in  complaint,  1087. 
striking  out  by  amendment,  1024. 

setting  up  new  cause  in  complaint  by  amendment,  1024. 
power  to  amend  by  adding  new  cause  of  action  before  trial,  1026. 
power  to  amend  at  trial  by  adding  new  cause,  1029. 
changing  by  amendment  after  trial,  1037. 

amendment  to  conform  to  proof  where  new  cause  of  action  intro- 
duced, 1033. 
failure  to  separately  number  as  ground  of  demurrer,  1002. 
averment  as  to  in  attachment  affidavit,  1440. 
want  of  as  ground  for  vacating  judgment,  2818. 
injury  to  property  in  custody  of  sheriff  under  execution,  3120. 
reached  by  creditor's  suit,  3406. 
as  vesting  in  receiver  in  supplementary  proceedings,  3364,  3365. 


4390  INDEX. 

[references  are  to  pages.] 

CAVEAT  EMPTOR, 

judicial  sales,  3237. 
execution  sales,  3132. 

CEMETERIES, 

burying  ground  as  exempt,  1425. 

CERTAINTY    (see  "Definiteness"). 

CERTIFICATE   (see,  also,  "Acknowledgment"), 
sheriff's  certificate  of  service  of  summons,  784. 
of  officer  where  affidavit  is  taken  without  the  state,  557-559. 
of  service  of  papers,  665. 
of  age  of  judge,  221. 
of  bonds  and  undertakings,  679. 
for  costs,  3031. 
to  obtain  double  costs,  2993. 

to  obtain  costs  against  school  officer  or  supervisor,  2938. 
to  obtain  costs  against  executor  or  administrator,  2958. 
to  show  that  title  arose  on  the  trial,  to  obtain  costs,  2911. 
of  sale  of  real  property  on  execution,  3146. 
of  redemption  from  execution  sale,  3180. 
of  satisfaction  of  judgment  executed  by  creditor  redeeming  from 

execution  sale,  3170. 
certification  of  case,  2676. 

variance  between  sheriff's  deed  and  certificate  of  sale,  3159. 
of  counsel  on  moving  for  leave  to  sue  as  a  poor  person,  1875. 
from  third  person  as  to  property  of  attachment  debtor  in  his  hands, 

1498. 
where  appeal  to  court  of  appeals  by  leave  of  court,  3621. 
of  authenticity  of  papers  on  appeal,  3803. 

CERTIORARI, 

power  of  judge  out  of  court,  237. 

jurisdiction  of  supreme  court,  158. 

double  costs,  2992. 

additional  allowance  of  costs  where  assessment  is  reviewed,  3002. 

CHALLENGES  (see  "Jury"). 

CHAMBERS  (see  "Judges,"  "Special  Term"). 

CHAMPERTY  AND  MAINTENANCE, 

common  law  and  Code  rules,  262. 

prohibition  against  purchase  for  purpose  of  suit,  264,  4061. 
prohibition  against  paying  to  procure  claims  to  sue  on,  265,  4061. 
manner  of  raising  objection  and  judgment,  266. 


INDEX.  4391 

[references  are  to  pages.] 
CHANCERY  (see  "Equity"). 

CHANGE  OF  PLACE  OF  TRIAL  (see,  also,  "Place  of  Trial"), 

historical,  334,  335. 

change  of  place  of  holding  court,  112. 

statutes  as  precluding  right  to  a  change,  1928. 

waiver  of  right,  1929. 

number  of  changes  allowed,  1929. 

to  what  county  change  to  be  made,  1930,  4150. 

change  because  action  is  brought  in  wrong  county,  1930. 

stipulation  to  avoid  change,  1931. 
change  for  convenience  of  witnesses,  1931,  4151. 

witnesses    whose    convenience    "will    not    be    considered,    1936, 
4151. 

change   from   adjoining  counties   to  New   York   county,   1936, 
4151. 

stipulations  or  admissions  to  avoid  change,  1937. 
change  because  of  inability  to  obtain  impartial  trial,  1938. 
change  for  convenience  of  judge,  1940. 
demand  the  first  step,  1940. 

necessity  of  demand  as  dependent  on  ground  for  change,  1940. 
contents  of  demand, '1941. 
time  for  service  of  demand,  1941,  4151. 
effect  of  demand,  1942. 

objections  to  demand  and  waiver  thereof,  1943. 
consent  of  plaintiff,  1943. 
motion  as  remedy,  1944. 
stay  of  proceedings,  1944. 
place  for  making  motion,  1945,  4152. 
time  for  motion  and  notice  of  motion,  1945,  4152. 
who  may  move,  1947,  4152. 

amendment  of  complaint  to  defeat  motion,  1948,  4152. 
renewal  of  motion,  1950. 
effect  of  failure  to  move,  1951. 
affidavits,  1951. 

on  motion  to  change  to  proper  county,  1951,  4152. 
on  motion  to  obtain  an  impartial  trial,  1953. 
on  motion  to  change  for  convenience  of  witnesses,  1954. 
counter-affidavits,  1959. 
contents  of  order,  1961. 
terms  and  conditions,  1961. 
costs  to  abide  event,  2938. 
order  without  prejudice,  1962. 
when  order  takes  effect,  1963. 


4392  INDEX. 

[references  are  to  pages.] 
CHANGE  OF  PLACE  OF  TRIAL— Cont'd, 
vacation  of  order,  1963. 
waiver  of  objections  to  change,  1963. 
right  to  appeal  from  order,  1963. 

duty  of  county  clerk  on  granting  of  change,  1963. 
effect  of  change,  1964. 

CHARGE  TO  THE  JURY, 

nature  of  charge,  2310,  4163. 
definition,  2311. 
purpose,  2311. 
power  of  court,  2312. 
questions  for  the  court,  2312. 
questions  for  the  jury,  2313. 
invasion  of  province  of  jury,  2315. 

distinguishing  between  the  law  and  the  facts,  231? 
summing  up  the  evidence,  2315. 
opinion  on  questions  of  fact,  2317. 
sufficiency  of  evidence,  319. 

statement  as  to  presumptions  and  inferences,  2319. 
damages,  2320. 

credibility  of  witnesses,  2320. 
assuming  facts  as  true,  2321. 
giving  undue  prominence  to  evidence,  2322. 
argumentativeness,  2324. 
clearness,  2325. 
consistency,  2325. 
reading  opinion  of  court,  2325. 
basing  charge  on  belief  from  the  evidence,  3226. 
conformity  to  pleadings  and  evidence,  2326. 
ignoring  material  evidence,  issues,  theories,  or  defenses,  2327. 
as  to  credibility  of  witnesses,  2327,  4164. 
effect  of  false  testimony,  2329. 
where  witness  has  been  impeached,  2329. 
as  to  burden  of  proof,  2330. 
as  to  degree  of  proof,  2331,  4164. 

as  to  failure  to  produce  witnesses  or  evidence,  2331,  4164. 
as  to  result  of  verdict,  2333. 
to  disregard  evidence,  2275. 
effect,  2276. 
requests  to  charge,  2333. 

right  and  necessity,  2333. 
time,  2334. 
form,  2335,  4164. 


index.  4393 

[references  are  to  pages.] 

CHARGE  TO  THE  JURY— Cont'd, 
ruling  on  requests,  2336,  4164. 

repetition  of  charge  already  given,  2337,  4164. 

requests  bad  in  part,  2338. 

modification  by  court,  2338. 
presentation  to  jury,  2338. 

time,  2338,  on  Sunday,  104,  105. 

presence  of  counsel,  2339. 

order,  2339. 

mode  of  giving,  2339. 
additional  instructions  after  jury  have  retired,  2339,  4164. 
withdrawal  and  correction,  2341. 
exceptions,  2342. 

necessity,  2342. 

time,  2444. 

sufficiency,  2344. 

exceptions  without  requests  to  charge,  2346. 
construing  as  a  whole,  2348,  4165. 

error  in  giving  or  refusing  as  ground  for  new  trial,  2692. 
new  trial  where  jury  disregard,  2698. 
necessity  for  including  in  case,  2668. 

CHATTEL  MORTGAGES, 

place  of  trial  of  action  for  wrongful  seizure  by  mortgagee  before 

default,  359,  360. 
acceptance  of  surplus  after  execution  sale  as  election  of  remedy  by 

mortgagee,  44. 
giving  of  as  ground  for  attachment,  1400. 
interest  of  mortgagor  as  subject  to  attachment,  1412. 
delivery    of    mortgaged    property,    in    supplementary    proceedings, 

3332. 
giving  of,  or  sale  under,  as  divesting  lien  of  execution,  3101. 
interest  of  mortgagor  or  mortgagee  as  leviable,  3113. 
rights  of  receiver  in  supplementary  proceedings  as  to  mortgaged 

property,  3370. 
creditor's  suit  to  set  aside,  3386. 

CHATTELS  (see,  also,  "Personal  Property"), 
recovery  of,  see  "Replevin." 
actions  relating  to,  11. 

CHECK, 

payment  by,  3172. 

payment  of  bid  at  judicial  sale,  3242. 

sufficiency  as  tender.  2010. 


4394  INDEX- 

[rkfkrkncks  ark  to  packs.] 

CHILDREN   (see  "Infants,"  "Guardians,"  "Guardian  Ad  Litem,"  "Par- 
ent and  Child"). 

CHOSES  IN  ACTION, 
attachment  of,  140S. 
execution  against,  3107. 

CHURCH  (see  "Religious  Corporations"). 

CITIES  (see  "Municipal  Corporations"). 

CITY  COURTS, 

inferior  courts,  100. 

superior  city  courts,  199. 

history  of  New  York  common  pleas,  200. 

history  of  New  York  superior  court,  202. 

history  of  city  court  of  Brooklyn,  202. 

history  of  superior  court  of  city  of  Buffalo,  203. 

I.  City  Court  of  New  York. 

inferior  court  of  limited  jurisdiction,  203. 
jurisdiction  as  conferred  by  Code,  203. 

action  for  sum  of  money  or  recovery  of  chattels,  203. 

action  to  foreclose  lien  on  real  estate,  204. 

action  to  enforce  lien  on  chattels,  204. 

judgment  by  confession,  205. 

marine  causes  of  action,  205. 

limitations  on  amount  involved,  205. 

territorial  limit  of  jurisiction,  206. 
justices  of  the  court,  207- 
equitable  jurisdiction,  207,  4056. 
rules  of  court,  208. 
terms  of  court,  209. 
officers  of  court,  209. 
removal  of  causes  to  city  court,  210. 

Code  provisions  applicable  exclusively  to  city  court,  211. 
appeals,  211. 

removal  of  cause  to  supreme  court,  210. 
notice  of  motions,  589. 
notice  of  trial,  1672. 
power  of  judge  in  another  court  to  make  an  order  in  action  in' 

city  court,  604. 
power  to  make  motion  before  court  or  judge  out  of  court,  596.. 
extension  of  time  to  answer,  939. 


INDEX.  4395 

[references  are  to  pages.] 

CITY  COURTS— Cont'd. 

security  for  costs,  1887,  1894,  1895,  1899. 

power  of  judge  to  entertain  supplementary  proceedings,  3269. 

appeals  to  appellate  term,  3648. 

CIVIL  DAMAGE  ACT, 

abatement  of  action  by  deatb  of  party,  2066,  2070. 

CLAIM  AND  DELIVERY  (see  "Replevin"). 

CLERKS, 

acts  of  law  clerk  as  binding  his  employer,  241. 

power  of  attorney's  clerk  to  make  affidavit,  546. 

power  of  attorney's  clerk  to  act  as  guardian  ad  litem,  2043. 

CLERKS  OF  COURT, 

of  supreme  court,  1636. 

appointment,  308. 

deputy  clerks,  308. 

powers  and  duties  generally,  309. 

liabilities,  311. 

restrictions  connected  with  office,  311. 

effect  on  proceedings  of  default  or  negligence  of,  311. 

default  or  negligence  of  as  cured  by  verdict,  report  or  decision,  703. 

fees,  311. 

necessity  for  entering  order  with  clerk,  623-626. 

service  of  papers  on  clerk  of  court,  662. 

necessity  of  obtaining  leave  of  court  to  sue  clerk  as  custodian,  88. 

competency  to  act  as  receiver,  1633. 

power  to  receive  verdict,  2357. 

power  to  act  as  guardian  ad  litem,  2044. 

duty  to  give  certificate  on  demand  of  officer  holding  attachment, 

1499. 
undertaking  as  guardian  ad  litem,  2046. 
duty  to  sign  judgment,  2758. 
duty  to  enter  judgment,  2781. 

signature  and  filing  of  judgment  as  constituting  entry,  2781. 
cancelling  docket  of  judgment,  2840. 
entry  of  judgment  in  docket  book,  2791. 
power  to  assess  damages  where  judgment  by  default,  2851. 
filing  transcript  of  docket,  2793. 
taxation  of  fees,  3050. 

mistake  of,  as  ground  for  opening  default  judgment,  2870. 
payment  of  money  to,  to  redeem  from  execution  sale,  3175. 


t396  INDEX. 

[  INFERENCES    ARE   TO   PAGES.] 

CLERKS  OF  COURT— Cont'd. 

power  to  issue  execution  as  exclusive,  3064. 
duty  to  tax  costs,  3026. 

collateral  attack  on  appointment  as  receiver  in  supplementary  pro- 
ceedings, 3359. 

CLIENT  (see  "Attorneys  at  Law"). 

CLOSING  ADDRESS  TO  THE  JURY  (see  "Summing  Up  by  Counsel"). 

CLOUD  ON  TITLE  (see  "Quieting  Title"). 

CODE  OF  CIVIL  PROCEDURE, 

sections  cited,  see  table  in  front  of  volume. 

practice  where  no  Code  provision  or  rule  of  court,  120. 

abolishing  forms  of  action,  26. 

COERCION, 

of  jury  on  failure  to  agree,  2351. 

COLLATERAL  ATTACK, 

order,  629. 

substituted  service  of  summons,  755. 

reference,  2582. 

service  of  summons  by  publication,  775. 
want  of  authority  of  attorney  to  bring  action,  273. 
appointment  of  receiver,  1638,  3359. 
attachment  proceedings,  1530. 

judgment  because  guardian  ad  litem  was  incompetent,  2043. 
order  reviving  suit  on  death  of  sole  party,  2086. 
supplementary  proceedings,  3269. 
taxation  of  costs,  3039.- 
judgment  by  confession,  2892. 

COLLATERAL  MATTERS, 

contradicting  witness  as  to,  2258. 

COLLATERAL  SECURITY, 

taking  of  as  precluding  right  to  order  of  arrest,  1277. 
subject  to  attorney's  lien,  295. 

COLLUSION  (see  "Fraud"). 

COMITY, 

enforcement  of  foreign  statutes,  129. 


index.  4397 

[references  are  to  pages.] 

COMMENCEMENT  OF  ACTION  (see,  also,  "Attachment"), 
of  suits  in  equity,  711. 
at  common  law,  711. 
by  summons,  713. 
what  is,  under  statute  of  limitations,  514. 

COMMERCIAL  PAPER  (see  "Negotiable  Instruments"). 
COMMISSION, 

receiver's  commissions,  1655. 

to  examine  witness  without  the  state,  1728,  1743. 

to  take  testimony  within,  for  use  without,  state,  1770. 

COMMISSIONER, 

fees  as  disbursements,  2985. 

COMMISSION  OF  APPEALS, 

decisions  as  governing  other  courts,  115. 

COMMITTEES  (see  "Habitual  Drunkards"). 

COMMON  CARRIERS  (see  "Carriers"). 

COMMON  LAW, 

rule  for  construction  of  pleadings,  902. 

amendment  changing  statutory  to  common  law  action,  1034. 
limitations  of  actions  at  common  law,  438. 
necessity  of  pleading  rules  of  common  law,  831. 
commencement  of  actions  at  common  law,  711. 

what  are  common  law  remedies  in  admiralty  cases  as  determining 
jurisdiction,  138,  139. 

COMPENSATION  (see,  also,  "Fees,"  "Attorneys  at  Law"), 
of  guardian  ad  litem,  2049. 

of  receiver  in  supplementary  proceedings,  3378. 
of  referee  who  sells  under  judgment,  3246. 

COMPLAINT, 

amendment,  see  "Amendment." 

in  creditor's  suit,  see  "Creditor's  Suit." 

joinder  of  causes  of  action,  see  "Joinder  of  Causes  of  Action." 

contents  as  fixed  by  Code,  917,  4102. 

title,  918. 

name  of  court,  918. 

name  of  county,  918,  4102. 

names  of  parties,  919,  4102. 


1-398  INDEX. 

[  KIM'KKEXCES    ARE   TO   PAGES.] 

COMPLAINT— Cont'd. 

statement  of  cause  of  action,  922,  4102. 
anticipating  defense,  925,  4103. 
statement  of  two  or  more  separate  causes  of  action,  926,  4104. 

demand  for  judgment,  927,  4104. 

demand  for  interlocutory  as  well  as  final  judgment,  929. 

conformity  to  summons,  929. 

separation  of  causes  of  action,  1087. 

service  of,  881. 

service  of  complaint  with  summons,  729. 

service  of  complaint  as  notice  to  employer  of  personal  i?ijury,  84. 

failure  to  serve  complaint  as  affecting  pendency  of  action,  46. 

supplemental  complaint,  1053. 

prayer  for  relief  as  determining  whether  action  is  ex  contractu,  28. 

prayer  for  relief  as  determining  whether  action  is  legal,  21. 

effect  of  want  of  or  defects  in  verification,  900. 

extension  of  time  to  answer  as  extending  time  to  move  as  to,  940. 

verified  as  proof  to  ohtain  service  of  summons  by  publication,  763. 

failure  to  separately  state  and  number  causes  of  action  as  ground 
of  demurrer,  1002. 

motion  to  compel  separation  of  causes  of  action,  1087. 

motion  on  trial  to  dismiss  for  failure  to  state  cause  of  action,  1081, 
2210. 

determining  whether  cause  of  action  is  stated  as  against  demur- 
rer, 1000. 

service  of  amended  on  persons  brought  in  as  defendants,  426,  427. 

showing  appointment  in  action  by  guardian  ad  litem,  91,  92. 

allegation  of  leave  to  sue,  85,  86. 

manner  of  raising  objection  that  infant  plaintiff  appears  without 
guardian  ad  litem,  92. 

allege   giving   of   notice   of  personal   injury   in   action  by  servant 
against  master,  84. 

waiver  of  objections  to  complaint,  1090,  4128,  4129. 

discovery  and  inspection  to  enable  plaintiff  to  frame,  1835. 

sufficiency  of  to  obtain  order  of  arrest,  1323. 

use  as  affidavit  in  obtaining  order  of  arrest,  1321. 

in  action  on  judgment,  2843. 

new  trial  on  judge's  minutes  after  dismissal  of,  2718. 

COMPROMISE  (see,  also,  "Accord  and  Satisfaction,"  "Settlement"), 

as  affecting  attorney's  lien,  297. 
implied  power  of  attorney  to,  270. 
pleading  by  supplemental  answer,  1054. 

COMPTROLLER, 

custody  of  moneys  paid  into  court,  2016. 


index.  4399 

[references  are  to  pages.] 

•CONCEALMENT  (see,  also,  "Fraud"), 

fraudulent  as  preventing  operation  of  statute  of  limitations,  494. 
ground  for  allowing  service  of  summons  by  publication,  760. 
within  state  to  defraud  creditors  as  ground  of  attachment,  1397. 
sufficiency  of  affidavit  for  attachment  on  ground  of,  1449. 

CONCISENESS, 

in  pleading,  836. 

CONCLUSIONS, 

pleading  conclusions  of  law,  828,  847. 

denial  of  in  answer,  944. 

sufficiency  of  allegations  of  conclusions  in  affidavits,  543. 

in  decision  of  judge,  2381. 

sufficiency  of  exceptions  to,  in  decision  or  report,  2391. 

in  report  of  referee,  2619. 

admission  by  allowing  default  judgment,  2860. 

CONCURRENT  JURISDICTION, 

state  and  federal  courts,  125  et  seq. 

CONDEMNATION  OF  LAND  (see  "Eminent  Domain"). 

CONDITIONAL  SALES, 

buyer's  interest  as  subject  to  execution,  3106. 

CONDITIONS, 

imposing  conditions  on  making  tender,  2010. 

CONDITIONS  PRECEDENT, 

definiteness  and  certainty  in  pleading,  852. 

admissibility  of  evidence  as  to  non-performance  under  general  de- 
nial, 949. 

CONFESSION  AND  AVOIDANCE  (see,  also,  "Answer"), 

nature  of  plea,  954. 
necessity  of  giving  color,  958. 

CONFESSION  OF  JUDGMENT, 
as  civil  contempt,  329. 
as  ground  of  attachment,  1401. 
motion  to  set  aside  as  special  proceeding,  17. 


4400  INDEX. 

[references  are  to  pages.] 

CONFESSION  OF  JUDGMENT— Cont'd. 

purposes  for  which  judgment  may  be  confessed,  2879. 
who  may  confess  judgment,  2880. 

married  women,  28S0. 

trustee,  2880. 

public  officer,  2880. 

executors  and  administrators,  2880. 

person  under  arrest,  2881. 

joint  debtors,  2881. 

insolvent  corporation,  2881. 
statement,  2881. 

signature,  2885. 

verification,  2885. 

amendment,  2886. 
entry  of  judgment,  2887. 

judgment  roll,  2888. 

docketing  and  enforcement,  2888. 

execution  where  judgment  is  not  all  due,  2889. 
vacating  the  judgment,  2890. 

who  may  move,  2S22,  2890. 

grounds,  2890. 

time  for  motion,  2891. 

notice  of  motion,  2891. 

order,  2891. 
collateral  attack,  2892. 

right  of  judgment  creditor  to  redeem  from  execution  sale  on  an- 
other judgment,  3164. 
as  violation  of  injunction  in  creditor's  suit,  3422. 

CONFIDENTIAL    COMMUNICATIONS    (see    "Privileged    Communica- 
tions"). 

CONFIRMATION, 

of  report  of  referee,  2638. 
time,  2640. 

CONFLICT  OF  LAWS, 
as  to  costs,  2904. 
as  to  limitations,  446,  447. 
as  to  arrest,  1275. 
as  to  attachment,  1382. 

CONGRESS, 

exemption  of  members  of  Congress,  1311. 


INDEX.  4401 

[references  are  to  pages.] 
CONSANGUINITY, 

as  disqualifying  judge,  see  "Judges." 

CONSENT, 

to  act  as  guardian  ad  litem,  2044. 

to  act  as  attorney  where  leave  is  granted  to  sue  as  a  poor  person, 

1879. 
to  change  of  place  of  trial,  1943. 
to  examination  of  witness  outside  of  state,  1731. 
to  payment  of  money  out  of  court,  2022. 
to  trial  without  jury,  2143. 
to  reference,  2553. 

to  issuance  of  execution  after  five  years,  3070. 
to  motion  for  new  trial  on  judge's  minutes  at  subsequent  term  of 

court,  2718. 
to  dismissal  of  appeal,  3838. 
as  conferring  jurisdiction,  123,  3609. 
appeal  from  consent  judgment  or  order,  3663. 
as  affecting  substitution  of  attorneys,  273  et  seq. 
order  by  consent,  618. 
re-settlement  of  consent  order,  633. 
necessity  for  incorporation  in  order,  621. 

CONSIDERATION  (see,  also,  "Contracts"), 

admissibility  of  evidence  as  to  under  general  denial,  946. 

allegation  of  in  complaint,  924. 

necessity  for  statement  of  in  bond  or  undertaking,  675. 

for  undertaking  to  discharge. property  from  attachment,  1505. 

of  promise  to  take  case  out  of  statute  of  limitations,  524,  525. 

CONSISTENCY  (see  "Inconsistency"). 

CONSOLIDATION  OF  ACTIONS, 
amount  in  controversy,  125. 
different  from  stay  of  proceedings,  1690. 
object  of  consolidation,  1692. 
as  dependent  on  parties,  1692. 
as  dependent  on  subject-matter,  1693,  4139. 
as  dependent  on  nature  of  action,  1694. 
as  dependent  on  actions  in  same  court,  1695. 
as  dependent  on  amount  in  controversy,  1695. 
as  dependent  on  discretion  of  court,  1695,  4139. 
as  dependent  on  actions  being  brought  at  same  time,  1697. 
consolidation  of  actions  brought  in  behalf  of  the  people,  1697. 
N.  Y.  Prac—  276. 


il(iL)  INDEX. 

[references  are  to  pages.] 

CONSOLIDATION  OP  ACTIONS— Cont'd, 
procedure,  1697. 

time  for  motion,  1699. 

place  to  make  motion,  1699. 

who  may  make  motion,  1700. 

order,  1700. 
effect,  1700. 

CONSPIRACY, 

jurisdiction  where  conspiracy  formed  in  another  state,  129. 

fight  to  require  bill  of  particulars,  868. 

abatement  of  action  by  death,  2071. 

judgment  against  part  of  defendants,  2760. 

action  by  receiver  in  supplementary  proceedings,  3372. 

CONSTITUTIONAL  LAW, 

courts  created  by  constitution  as  distinguished  from  courts  created 
by  legislature,  98,  99. 

determination  of  constitutionality  on  motion  to  strike  out  parts  of 
pleading,  1069. 

constitutionality  of  statute  of  limitations,  448,  449. 

constitutionality  of  statute  allowing  substituted  service  of  sum- 
mons, 751. 

consitutionality  of  statute  for  physical  examination  of  party  be- 
fore trial,  1819. 

CONSTRUCTION, 

of  order,  617. 

of  undertaking,  678. 

CONSTRUCTION  OF  PLEADINGS, 

common  law  as  distinguished  from  Code  rule,  902. 
implications  must  follow  of  necessity  from  facts  stated,  905. 
facts  pleaded  and  not  intention  controls,  905. 
construction  of  pleading  as  an  entirety,  905. 
construction  as  dependent  on  when  attacked,  S06. 

construction  as  against  a  demurrer,  906. 

construction  on  the  trial,  906. 

construction  to  sustain  verdict  or  judgment,  906. 
allegations  in  verified  pleadings,  907. 
aids  in  interpretation,  907. 

inconsistency  between  allegations  in  different  counts,  908. 
general  as  against  specific  statements,  908. 
title  vs.  body  of  pleading,  908. 


INDEX.  4403 

[references  are  to  pages.] 
CONSTRUCTION  OF  PLEADINGS— Cont'd, 
express  admissions,  912. 

allegations  in  pleadings  vs.  exhibits,  908,  4101. 
time  to  which  allegations  relate,  908. 
clerical  errors,  909. 

CONSULS, 

jurisdiction  of  case  involving  consul,  144. 
appointment  as  abating  action  against,  2063. 

CONTEMPT  (see,  also,  "Supplementary  Proceedings"), 
civil  or  criminal,  317,  4065. 

contempts  in  presence,  and  out  of  presence,  of  court,  319. 
power  of  courts  and  officers  to  punish,  319,  4065. 

disobedience  to  order  made  by  judge  out  of  court,  319. 
court  its  own  judge  of  contempts,  320. 
acts  constituting  criminal  contempt,  320. 

disorderly  behavior,  320,  4066. 

breach  of  peace,  noise,  etc.,  321. 

wilful  disobedience  to  mandate,  321. 

resistance  to  mandate,  323. 

refusal  of  witness  to  attend  or  testify,  323. 

publication  of  proceedings  of  court,  323. 
acts  constituting  civil  contempt,  323. 

acts  of  officers,  325. 

fictitious  sureties  or  other  deceit,  325,  4066. 

disobedience  to  order  or  mandate  of  court,  327. 

interference  with  proceedings,  328,  4066. 

refusal  of  witness  to  attend  or  testify,  330. 

improper  acts  of  jurors,  331. 

disobedience  by  officer  of  inferior  court,  331. 

common  law  grounds,  331. 
particular  Code  provisions  relating  to  contempts,  331. 
disobedience  as  ground  for  punishment,  333,  4066. 

constructive  disobedience,  334. 

definiteness  of  order,  334. 

service  and  knowledge  of  order,  334,  4066. 

demand  as  condition  precedent,  336. 

effect  of  disobedience  to  invalid  order,  336,  4067. 

effect  of  reversal  or  dissolution  of  order,  337. 

enforcement  of  judgment,  338. 
excuses,  339. 

inability  to  comply  with  order,  339,  4067. 

pendency  of  appeal  from  order  disobeyed,  340. 

short  notice  to  witness,  340. 


4-j-O-i  INDEX. 

|  i;i-:i'ki;km  i;s   auk  to  packs.] 
CONTEMPT— Cont'd. 

defenses,  3  lit. 

persons  liable,  341,  4067. 

power  of  judge  out  of  court  to  punish,  235. 

power  of  referee  to  punish,  2599,  2607,  3317. 

proceeding  to  enforce  judgment  by  attachment  for  a  contempt  as 

special  proceeding,  17. 
reference  in  contempt  proceedings,  2572. 

violation  of  injunction  order  in  supplementary  proceedings,  3305. 
proceedings  to  collect  costs,  3041. 

what  judgments  may  be  enforced  by  contempt  proceedings,  3061. 
enforcement  of  order  to  pay  bid  at  judicial  sale,  3241. 
effect  as  precluding  right  to  make  motion,  1594. 
appeal  as  of  right  to  court  of  appeals,  3616. 

I.  Disobedience  to  Particular  Orders. 

order  for  examination  of  party  before  trial,  1S09. 
temporary  injunction,  1587. 
subpoena,  1979. 
order  for  inspection,  1857. 

order  to  produce  papers  or  subpcena  duces  tecum,  1971. 
order  to  turn  property  over  to  receiver,  1640. 
subpoena  or  to  testify  where  deposition  is  taken  within,  for 
use  without,  the  state,  1773. 

CONTINUANCE   (see,  also,  "Postponement"), 
on  death  of  co-party,  2092. 
on  death  of  a  sole  party,  2079. 
on  severance  of  action  where  part  of  plaintiff's  claim  is  admitted, 

1702. 
of  temporary  injunction,  1590. 

CONTRACTS    (see,    also,    "Sales,"    "Bonds,"    "Undertakings,"    ''Agree- 
ments," "Stipulations,"  "Negotiable  Instruments"), 
recovery  ex  contractu  in  action  ex  delicto,  2765. 
creditor's  suit  as  based  on  contract,  3388. 
arrest  in  actions  on  contract  based  on  fraud,  1288. 
attachment  in  action  based  on  breach  of  contract,  1390. 
enforcement  of  indefinite  contract  by  temporary  injunction,  1565. 
interpleader  in  action  to  recover  on  contract,  1859. 
power  of  receiver  to  make,  1642. 

actions  ex  contractu  as  distinguished  from  actions  ex  delicto,  23. 
jurisdiction  to  enforce  where  parties  reside  outside  of  state,  132. 
limitations  by  contract  as  distinguished  from  statute  of,  445. 
denniteness  in  pleading  performance  of  conditions  precedent,  852. 


INDEX.  4405 

[references  are  to  pages.] 

CONTRACTS— Cont'd. 

actions  on  simple  contracts  as  barred  in  six  years,  474. 

counterclaims  in  actions  on  contracts,  980. 

necessity  of  pleading  as  defense,  rescission  of  contract  sued  on, 

954. 
admissibility  of  evidence  as  to  illegality  under  general  denial,  947. 
right  of  person  for  whose  benefit  contract  is  made  to  sue,  380-384. 
liability  as  joint  or  several,  396,  397. 
bill  of  particulars  in  action  on,  865. 

service  of  notice  with  summons  in  actions  for  breach  of,  727. 
stipulations  in  as  governing  place  of  trial,  348. 

CONTRADICTION, 

of  witness,  2247,  2256. 

CONTRIBUTION, 

between  execution  debtors,  3155. 

CONTRIBUTORY  NEGLIGENCE  (see  "Negligence"). 

CONVENIENCE  OF  WITNESSES, 
change  of  place  of  trial  for,  1931. 

CONVERSION  (see,  also,  "Trover"), 

ground  for  disbarment  of  attorney,  250. 

liability  of  receiver  in  supplementary  proceedings,  3369. 

CONVEYANCES   (see  "Deeds,"  "Written  Instruments"). 

CONVICTS, 

time  to  move  to  vacate  judgment,  2826. 

COPY, 

discovery  and  inspection  of  copy  of  writing,  1834. 

COPY  OF  ACCOUNT, 

as  distinguished  from  bill  of  particulars,  857,  4093. 

demand,  857,  4093. 

sufficiency  of  copy,  859. 

procedure  where  account  served  is  insufficient,  860. 

inclusion  in  case,  2669. 

COPYRIGHT, 

jurisdiction  of  actions  as  between  state  and  federal  courts,  142. 


4406  INDEX- 

I  REFERENCES   ARE  TO  PAGES.] 

CORONERS, 

time  within  which  to  bring  actions  against,  478. 
execution  directed  to,  3091. 

CORPORATIONS  (see,  also,  "Municipal  Corporations."  "Insurance  Com- 
panies," "Religious  Corporations,"  "Carriers,"  "Railroads,"  "For- 
eign Corporations,"  "Fidelity  Companies,"  "Receivers,"  "Divi- 
dends," "Banks,"  "National  Banks"), 

name  of  in  title  of  pleading,  919. 

name  of  in  summons,  717. 

liability  for  contempt,  341. 

right  to  set  up  statute  of  limitation,  454. 

service  of  summons  on  officer,  742. 

substituted  service  of  summons  on,  752. 

power  of  officer  to  verify  pleading,  891. 

service  of  summons  by  publication,  762. 

residence  of  as  determining  place  of  trial,  362,  363. 

place  of  trial  of  action  against  director  for  false  certificate,  355. 

residence  as  affecting  jurisdiction  of  county  court,  185,  186. 

when  cause  of  action  accrues  for  failure  to  file  report,  488. 

application  relating  to  receivership  as  special  proceeding,  17. 

necessity  of  obtaining  leave  to  sue  in  action  to  annul,  87. 

failure  to  aver  that  plaintiff  is  corporation  as  ground  of  demurrer, 
1000. 

appointment  of  receiver  as  affecting  service  of  summons  on,  744. 

jurisdiction  of  supreme  court  to  allow  transfer  of  real  estate,  159. 

inconsistent  causes  of  action  against  corporate  trustees,  72. 

jurisdiction  of  supreme  court  of  petition  to  dissolve,  159. 

cumulative  remedies,  40. 

actions  against  corporate  officers  as  ex  contractu  or  ex  delicto,  32. 

joinder  of  cause  of  action  against  director  personally  and  as  repre- 
sentative, 76. 

joinder  of  cause  of  action  against  stockholder  and  cause  of  action 
against  him  as  trustee,  76. 

action  by  one  stockholder  on  behalf  of  all,  416. 

disqualification  of  judge  where  stockholder  of  corporation  suing  or 
being  sued,  228,  229. 

joinder  of  causes  of  action  against  corporation  and  its  members, 
78. 

sufficiency  of  demand  against,  83. 

right  to  appeal,  3655. 

a  person,  1885. 

abatement  of  action  for  failure  to  file  report,  2067. 

arrest  of  president  of  corporation,  1302. 


INDEX.  4407 

[references  are  to  pages.] 

CORPORATIONS— Cont'd. 

arrest  in  action  for  failure  to  file  annual  report,  1279. 
attachment  of  property  of,  1384. 

compelling  production  on  trial  of  book  or  paper  belonging  to,  1972. 
directing  production  of  papers  where  officers  examined  before  trial, 

1804. 
discovery  and  inspection  where  corporation  is  a  party,  1831. 
dissolution  or  consolidation  as  abating  action,  2063,  2075. 
examination  of  officer  before  trial,  1776. 
liability  for  wrongful  attachment,  1544. 
notice  of  motion  for  temporary  injunction  where  it  will  suspend 

business,  1572. 
preference  on  calendar  of  action  against  corporation,  1678. 
punishment  for  violating  an  injunction,  1588. 
service  of  order  for  discovery  and  inspection,  1855. 
stock  of  domestic  corporation  as  subject  to  attachment,  1411. 
creditor's  suits  against,  3387. 
supplementary  proceedings  against,  3259. 
collection  of  costs  against,  3043. 
default  judgment  in  action  against,  2849. 
confession  of  judgment  by,  where  insolvent,  2881. 
how  examined  in  supplementary  proceedings,  3320. 
shares  of  stock  as  leviable,  3108. 
stockholders  as  necessary  defendants  in  creditor's  suit,  3416. 

COSTS   (see,  also,  "Fees,"  "Security  for  Costs,"  "Poor  Persons,"  "Dis- 
bursements," "Increased  Costs,"  "Additional  Allowances"), 
in  supplementary  proceedings,  see  "Supplementary  Proceedings." 
definition,  nature,  and  purpose,  2900. 

as  distinguished  from  fees  and  from  disbursements,  2900. 
final  and  interlocutory  costs,  2901. 
right  to  costs  as  dependent  on  statute,  2901,  4174. 
power  of  court  or  referee  to  award,  2902. 

where  court  is  without  jurisdiction,  2903. 

stipulations  as  to  costs,  2903. 
power  and  duty  of  referee  to  award,  2598,  2607. 
report  of  referee  must  award  or  deny,  2616. 
of  motion  for  reference,  to  abide  the  event,  2580. 
what  law  governs,  2904. 

statutes  in  force  at  termination  of  controversy,  2904. 
prolonging  litigation  to  determine  right  to  costs,  2904. 

in  equity,  2904. 
ownership,  259,  2905. 
waiver  of  right  to  costs,  2905. 

refusal  to  accept,  2905. 


440S  INDEX. 

f  kei  i:i;i:  n  <  is    w:r.  TO  PAGES.] 

CORPORATIONS— Cont'd. 

waiver  of  objections,  2905. 

failure  to  object,  2905. 

service  of  offer  to  allow  judgment,  2905. 

taking  of  an  appeal,  2905. 
allowance  to  receiver  in  special  proceedings,  in  action  by,  3373. 
of  resale,  payment  by  defaulting  bidder  at  judicial  sale,  3241. 
payment  as  condition  of  setting  aside  judicial  sale,  3232. 
payment  as  condition  of  allowing  amendment  of  judgment,  2813. 
payment  of  as  condition  to  awarding  new  trial,  2742. 
payment  of  as  condition  of  opening  default  judgment,  2875. 
amendment  of  judgment  as  to,  2810. 
granting  new  trial  to  recover,  2688. 

including  items  and  affidavits  as  to,  in  judgment  roll,  2788. 
separate  judgment  for,  2755. 
effect  of  tender  of  debt,  2005. 

effect  of  offer  to  allow  judgment  before  trial,  1989. 
including  in  tender,  2009. 
tender  of  before  trial,  2006. 

where  offer  to  liquidate  damages  is  not  accepted,  2003. 
of  reference  to  determine  damages  on  injunction  undertaking,  1608. 
on  postponing  trial,  2031. 

payment,  2034. 
on  severance  of  action,  1703. 
recovery  on  attachment  bond,  1459. 
recovery  on  injunction  bond,  1613. 
interest  of  judge  in  costs  as  disqualification,  229. 
on  submission  of  controversy,  36. 
provision  in  order  for  payment,  622. 
condition  of  allowing  amendment  of  pleadings,  1045. 
condition  of  allowing  supplemental  pleading  to  be  filed,  1058. 
compensation  of  guardian  ad  litem,  2050. 
charging  jury  as  to  affect  of  verdict  on,  2333. 
condition  of  granting  order  for  interpleader,  1869. 
condition  of  allowing  revival  of  action  on  death  of  party,  2087. 
condition  of  refusing  to  dismiss  complaint  for  failure  to  proceed. 

2131. 
decision  of  judge  on  trial  without  jury  must  award  or  deny,  2382. 
discontinuance  without  costs,  2116. 

I.  Recovery  as  a  Matter  of  Right. 

actions  involving  title  to  real  property,  2907. 
action  "triable  by  a  jury,"  2907. 
what  is  real  property,  2907. 


INDEX.  4409 

[references  are  to  pages.] 
CORPORATIONS— Cont'd. 

when  claim  arises  "on  the  pleadings,"  2908. 

when  claim  arises  on  the  trial,  2908. 

what  is  meant  by  "title,"  2908. 

title  vs.  possession,  2909. 

existence  of  easement  as  involving  title,  2909. 

defense  of  license  as  involving  title,  2909. 

admission  of  title  at  trial,  2910. 

certificate  that  question  of  title  arose  on  the  trial,  2911. 

partition,  2910. 

action  for  dower,  2910. 

creditor's  suit,  2910. 

action  to  abate  nuisance,  2910. 

ejectment,  2910. 

action  for  breach  of  covenant  for  quiet  enjoyment,  2910. 

trespass,  2911. 
action  to  recover  a  chattel,  2912. 
action  of  which  a  justice  of  the  peace  has  not  jurisdiction,  2914. 

action  where  people  of  state  are  party,  2914. 

action  for  tort  and  miscellaneous  actions,  2914. 

action  where  accounts  exceed  four  hundred  dollars,  2915. 

action  against  an  executor  or  administrator,  2917. 
action  to  recover  money  only,  2918. 

creditor's  suit,  2919. 

foreclosure  suit,  2919. 

action  for  penalty,  2919. 

action  to  enforce  a  lien,  2919. 
action  in  New  York  and  Kings  counties  which  could  have  been 

brought  in  minor  court,  2920. 
where  several  actions  brought  for  the  same  cause,  2920. 

actions  for  wrongs,  2921. 
where  two  or  more  causes  of  action  are  joined,  2921. 

what  constitutes  a  recovery  by  defendant,  2922. 

when  "substantial  cause  of  action"  is  the  same,  2923. 
after  discontinuance  in  justice's  court  on  plea  of  title,  2924. 

II.  Recovery  in  Action  as  Discretionary. 

actions  for  equitable  relief,  2925. 
where  action  is  dismissed,  2938. 
where  action  is  unnecessary,  2938,  4174. 
novel  questions  involved,  2928. 
where  each  party  succeeds  in  part,  2929. 
where  party  unreasonably  defends,  2930. 


4410  INDEX. 

I  INFERENCES    ARE   TO    PAGES.] 

CORPORATIONS— Cont'd. 

payment  from  fund,  2931. 

granting  costs  to  defendant  as  against  co-defendant,  2931. 
where  part  of  defendants  are  successful,  2932. 
where  controversy  is  submitted,  2933. 

III.  Recovery  as  Discretionary  in  Special  Proceedings. 

Code  rule,  255,  2933,  4174. 
exceptions,  2933. 

IV.  Recovery  on  Ruling  on  Demurrer. 

Code  rule,  2934. 

insertion  in  interlocutory  judgment,  2934. 

waiver,  2935. 

V.  Recovery  of  Motion  Costs  as  Discretionary. 

discretion  of  court,  2935,  4174. 

necessity  that  notice  of  motion  ask  for  costs,  2937. 

costs  to  abide  the  event,  2937. 
motion  for  additional  allowance,  3024. 

VI.  Right  to  in  Actions  Against  Particular  Persons. 
actions  against  school  officer  or  supervisor,  2948. 
actions  against  municipal  corporations,  2939. 

presentation  of  claim  before  suing,  2939. 
who  must  present  claim,  2940. 
sufficiency  of  claim,  2940. 

VII.  One  or  More  Bills  of  Costs. 

where  there  are  several  successful  defendants,  2940. 

effect  of  bad  faith,  2941. 
where  there  are  several  unsuccessful  defendants,  2942,  4174. 
motion  costs,  2942. 

VIII.  Persons  Liable. 

third  persons  where  judgment  is  for  defendant,  2943. 

action  by  assignee,  2944. 

who  is  "beneficially  interested"  in  an  action,   2945. 

enforcement  of  liability  of  third  person,  2948. 
third  persons  who  defend  in  name  of  defendant,  2949. 
parties  suing  or  sued  in  representative  capacity,  2949. 

what  constitutes  bad  faith  or  mismanagement,  2951. 

procedure  to  charge  representative  with  costs,  2952. 
executors  and  administrators,  2953. 

presentation  of  claim,  2956. 

when  claim  is  unreasonably  resisted  or  neglected,  2945. 


INDEX.  4411 

[references  are  to  pages.] 
CORPORATIONS— Cont'd. 

failure  to  file  consent,  2958. 

procedure,  2958. 
attorney,  1069,  1908,  2959. 
guardian  ad  litem,  92,  93,  2041,  2960. 

municipal  corporation  for  whose  benefit  action  is  brought  2961. 
relator  where  action  is  brought  in  name  of  the  people,  2961. 
liability  of  bail  for  costs  of  appeal,  1373. 

liability  for  where  leave  has  been  granted  to  sue  or  defend  as 
a  poor  person,  1879. 

IX.  Amount  as  Fixed  oy  Statute. 

disbursements,  see  "Disbursements." 

increased  costs,  see  "Increased  Costs." 

additional  allowances,  see  "Additional  Allowances." 

proceedings  before  notice  of  trial,  2058,  2962. 

service  of  summons,  2963. 

appointment  of  guardian  ad  litem,  2964. 

order  for  service  of  summons  by  publication,  2964. 

injunction  order  or  arrest  order,  2964. 

proceedings  after  notice  of  trial  and  before  trial,  2964. 

taking  depositions,  2965. 

drawing  interrogatories,  2965. 

trial  of  an  issue  of  law,  2966. 

on  entry  of  interlocutory  judgment,  2966. 
trial  of  an  issue  of  fact,  2967. 

what  constitutes  a  trial,  2967. 

number  of  trial  fees,  2969. 

when  trial  occupies  more  than  two  days,  2970. 
making  and  serving  case,  2971. 
making  and  serving  amendments  to  a  case,  2971. 
motion  for  new  trial  or  application  for  judgment  on  special 

verdict,  2971. 
motions  and  references,  2972. 
proceedings  before  new  trial,  2972. 
term  fees,  2973. 

when  cause  is  "necessarily"  on  the  calendar,  2974. 

number  of  term  fees,  2976. 
applications  to  appellate  division,  2976. 
costs  once  paid  as  condition  of  granting  a  favor,  2976. 

X.  Taxation. 

necessity,  3026. 

adjustment  before  entry  of  judgment,  2783. 

right  to  enter  judgment  where  costs  not  taxed,  2783. 


4412  INDEX. 

[kkkkkemts   aki:  to  tacks.  ] 

CORPORATIONS— Cont'd. 

who  may  tax,  236,  3026. 
notice  of  taxation,  3026. 

notice  of  retaxation,  3027. 
opening  to  enable  party  to  move  for  an  additional  allowance, 

3023. 
objecting  to  items,  on  taxation,  as  waiving  right  to  oppose  mo- 
tion for  costs,  2905. 
affidavit  of  disbursements,  3028. 

witness  fees,  3028. 

charge  for  copy  of  paper,  3030. 

fees  of  referee,  3030. 
certificate  for  costs,  3031. 
procedure,  3032. 

objections  to  items,  3032. 

powers  and  duties  of  taxing  officer,  3032. 

inserting  costs  in  judgment,  3034. 
retaxation  and  review  of  taxation,  3034. 

time  for  motion,  3036. 

motion  papers  and  scope  of  review,  3036. 

order,  3037. 

effect  on  judgment  of  retaxation,  3039. 

procedure  on  new  taxation,  3039. 
double  costs,  2993. 

taxation  on  entry  of  judgment  by  confession,  2887. 
collateral  attack,  3039. 

XL  Collection. 

execution  against  property,  3039. 

motion  costs,  3040. 
execution  against  person,  3040,  3202. 
supplementary  proceedings,  3041,  3258,  3272,  3274. 
contempt  proceedings,  333,  3041. 
mandamus,  3042. 

stay  of  proceedings,  1912,  1915,  3042. 
payment  of  costs  awarded  against  the  state,  3043. 
collection  of  costs  against  a  corporation,  3043. 
set-off  of  costs,  3043. 
recovery  back  of  costs  paid,  3045. 
failure  to  pay  as  precluding  motion  for  leave  to  sue  as  poor 

person,  1878. 
application  to  enforce  as  special  proceeding,  16. 
acceptance  of  as  waiver  of  right  to  appeal,  3667. 
payment  as  condition  to  right  to  appeal,  3598. 


INDEX.  441^ 

[references  are  to  pages.] 
COSTS  ON  APPEAL, 

on  appeal  from  surrogate's  court,  3991. 

on  appeal  to  county  court,  see  "County  Courts." 

power  to  grant  or  withhold.  3938. 

stipulation  as  to  costs,  3939. 
necessity  of  awarding  costs,  3939. 
what  law  governs,  3939. 
waiver  of  right  to  costs,  3940. 
actions  against  municipal  corporations,  3940. 
appeal  from  final  judgment,  3941. 

where  new  trial  is  awarded,  3942. 

where  judgment  is  modified,  3942. 
appeal  from  interlocutory  judgment  or  order.  3943. 
appeal  from  order  in  a  special  proceeding,  3944. 

in  condemnation  proceedings,  3945. 
on  dismissal  of  appeal,  3945. 
on  cross-appeals,  3946. 
persons  entitled,  3950. 
persons  liable,  3951. 
payment  from  fund,  3951. 

I.  Separate  Bills  of  Costs. 

several  appellants,  3946. 
several  respondents.  3946. 
appeal  by  both  parties,  3947. 
separate  appeals  by  co-parties',  3947. 
appeal  from  two  or  more  orders,  3947. 

appeal  from  judgment  and  from  order  denying  a  new  trial,  3948. 
where  two  or  more  actions  tried  as  one,  3948. 
where  action  is  severed,  3949. 

where  decision  is  to  abide  the  event  of  another  appeal,  3949. 
where  motion  and  appeal  heard  at  same  time,  3949. 
where  there  are  several  judgments  of  affirmance  by  an  inter- 
mediate court,  3950. 

II.  Amount  and  Items. 

appeal  to  the  court  of  appeals,  3952. 

term  fees,  3952. 

damages  for  delay,  3953. 
appeal  to  the  supreme  court  or  appellate  division,  3953. 

costs  for  argument,  3955. 

term  fees,  3955. 

appeal  from  order  in  special  proceedings,  3956. 

appeal  transferred  from  county  court,  3956. 

dismissal  of  appeal,  3956. 


uu 


INDEX. 


|  REFERENCES    AKE   TO   PAGES.] 

COSTS  OF  APPEAL— Cont'd. 

charge  for  making  case,  3957. 
disbursements,  3957. 

printing  expenses,  3958. 
increased  costs,  3959. 
additional  allowances,  3960. 

III.  Construction  of  Order  in  Lower  Court. 

where  costs  are  matter  of  right  in  trial  court,  3960. 
reversal  or  affirmance  "with  costs,"  3963. 

order  of  appellate  division,  3963. 

order  of  court  of  appeals,  3964. 

as  including  disbursements,  3965. 

separate  bills  of  costs,  3965. 
reversal  or  affirmance  "without  costs,"  3966. 
costs  "to  abide  the  event,"  3967. 
costs  "to  appellant  to  abide  the  event,"  3969. 

IV.  Taxation. 
procedure,  3969. 

V.  Collection. 

costs  on  appeal  from  final  judgment,  3971. 

costs  on  appeal  from  interlocutory  judgment,  3972. 

costs  on  appeal  from  order,  3972. 

COUNSEL  FEES, 

right  to  recover  in  action  on  attachment  bond,  1458. 

COUNSELLOR  (see  "Attorneys  at  Law"). 

COUNTERCLAIMS  (see,  also,  "Set-Off"), 
successive  counterclaims,  970. 
general  requisites  of  counterclaim,  971,  4110. 
actions  by  assignees,  981,  4111. 
actions  by  trustees  or  nominal  plaintiff,  982. 
actions  by  executor  or  administrator,  983. 

actions  against  persons  acting  in  representative  capacity,  983. 
mode  of  pleading  counterclaim,  983,  4111. 
effect  of  failure  to  set  up  counterclaim,  986. 
right  to  demur  to,  1002. 
grounds  of  demurrer  to,  51,  1004. 
contents  of  demurrer  to,  1007. 

stating  facts  constituting  defenses  as  counterclaims  as  ground  of 
demurrer,  1003. 


INDEX.  4415 

[references  are  to  pages.] 
COUNTERCLAIMS— Cont'd. 

effect  of  reply  to.  991. 

separation  of  facts  in,  1088. 

applicability  of  statute  of  limitations,  443,  444,  513. 

striking  out  as  sham,  1076. 

judgment  on  the  pleadings  on  the  ground  of  frivilousness,  1072. 

waiver  of  objections  to,  1092. 

effect  of  pendency  of  another  action  in  which  claim  sued  on  might 
be  set  up  as  counterclaim,  51. 

discontinuance  after  filing  of  counterclaim,  2108. 

basis  for  provisional  remedy,  1268. 

effect  of  on  offer  to  allow  judgment  before  trial,  2000. 

mode  of  trial  of,  2148. 

offer  to  allow  judgment  for,  before  trial,  1991. 

statement  in  affidavits  for  attachment  that  sum  is  due  above  coun- 
terclaims, 1444. 

separate  judgment  on,  2755. 

affirmative  judgment  on,  2762. 

recovery  of  greater  sum  than  that  demanded,  2766. 

vacating  judgment  to  allow  counterclaim  to  be  interposed,  2817. 

body  execution  on,  3202. 

computing  additional  allowance  of  costs  where  counterclaim  inter- 
posed, 3012. 

COUNTIES, 

county  in  which  to  make  motion  in  supreme  court,  595  et  seq. 

county  for  trial,  see  "Place  of  Trial,"  "Change  of  place  of  Trial." 

county  in  which  order  should  be  entered  625. 

name  of  county  in  title  of  complaint,  918. 

name  in  summons  of  county  in  which  trial  is  desired,  718. 

to  what  counties  execution  issued,  3092. 

to  support  supplementary  proceedings,  3276. 

to  support  creditor's  suit,  3397. 

COUNTY  CLERK  (see,  also,  "Clerks  of  Court"), 

custody  of  moneys  paid  into  court,  2016. 

duty  on  change  of  place  of  trial  being  granted,  1963. 

COUNTY  COURT, 

historical,  180. 

court  of  record,  101. 

courts  of  general  jurisdiction,  100. 


4410  INDEX. 

[REFERENCES   aee  to  PAGES.] 
COUNTY  COURT— Cont'd. 

place  for  holding  court,  112. 

decision  of  supreme  court  as  binding,  116. 

jurisdiction,  181,  4056. 

court  of  limited  jurisdiction,  184. 

naturalization  proceedings,  185. 

foreclosure  of  mechanic's  lien,  185. 

proceedings  under  assignment  for  benefit  of  creditors,  185. 

equitable  actions,  185. 

when  domestic  corporation  is  deemed  a  resident,  185,  4056. 
powers  of  county  court,  186. 

control  of  judgment  or  order,  186. 

powers  over  docketed  judgment  of  justice  of  the  peace,  187. 

power  to  order  hearing  of  exceptions  in  first  instance  in  su- 
preme court,  187. 
remission  of  fines  and  forfeitures,  187. 
powers  of  county  judge  conferred  by  statute,  188. 
judge  of  another  county  or  special  county  judge,  191,  4056. 
removal  of  action  to  supreme  court,  192. 

when  county  judge  is  incapacitated,  192. 

effect  of  order  of  removal  and  appeal,  193. 

effect  of  removal,  193. 

stay  of  proceedings,  194. 
terms  of  court,  194. 

publication,  194. 
jurors,  195. 
officers,  195. 

appellate  jurisdiction,  195. 
appeal  from  county  to  supreme  court,  195. 

matters  of  discretion,  195. 

orders  affecting  substantial  rights,  196. 

judgment  entered  on  report  of  referee,  197. 

order  granting  leave  to  issue  execution  on  justice's  judgment, 
197. 

order  in  special  proceedings,  197. 

appeal  from  orders  in  supplementary  proceedings,  197. 
power  of  county  judge  to  make  ex  parte  orders  in  actions  in  su- 
preme court,  603. 
power  to  order  exceptions  to  be  heard  by  appellate  division,  2723. 
power  to  cancel  docketed  justice's  judgment,  2815. 
power  over  transcript  of  justice's  judgment,  2795. 
power  over  receiver  in  supplementary  proceedings,  3376. 
power  to  entertain  supplementary  proceedings,  3270. 
new  trial  on  judge's  minutes,  2720. 


INDEX. 

[references  are  to  pages.] 
COUNTY  COURT— Cont'd. 

I.  Appeals  from  Justice  of  Peace. 
exclusive  remedy,  3994. 
to  what  court,  3995. 
what  may  be  appealed,  3995. 
who  may  appeal,  3995. 
time  to  appeal,  3997. 
notice  of  appeal,  3998. 
signature,  3999. 

mode  of  service  on  the  justice,  3999. 
mode  of  service  on  respondent,  3999. 
payment  of  costs  and  of  fee  for  return,  4000. 
security  to  perfect  appeal,  4001. 
amendments  and  supplying  omissions,  4002. 
notice  of  appeal,  4002. 
service  of  notice  of  appeal,  4003. 
payment  of  costs,  4003. 
undertaking,  4004. 
contents,  4004. 
sureties,  4006. 
service  and  delivery,  4006. 
filing,  4007. 
effect  after  levy,  4007. 
return,  4008. 

necessity,  4008. 
affidavits,  4009. 
time,  4010. 
compelling,  4010. 
preparation,  4011. 
contents,  4011. 
seal,  4013. 
filing,  4013. 

further  or  amended  return,  4014. 
liability  for  false  return,  4015. 
review  where  no  new  trial,  4016. 
stipulation  for  reversal,  4016. 
bringing  on  for  hearing,  4017. 
on  what  papers  heard,  4017. 
where  both  parties  appeal,  4019. 
allowing  amendments,  4020. 
grounds  for  reversal,  4020. 
judgment,  4022. 
restitution,  4024. 
rehearing,  4025. 

N.  Y.  Prac—  277. 


4417 


441S  INDEX. 

[KKI'ERENCES    ABE   TO    PAGES.] 

COUNTY  COURT— Cont'd. 

subsequent  procedure  before  justice,  4025. 

judgment  roll,  4025. 
new  trial,  4027. 

when  demandable,  4027. 

procedure  where  not  allowable,  4029. 

procedure  on  new  trial,  4030. 

pleadings,  4031. 

evidence,  4032. 

trial  de  novo,  4032. 

dismissal  of  appeal,  4032. 

reference,  4033. 

second  new  trial,  4033. 
costs,  4034. 

where  no  new  trial,  4034. 

after  new  trial,  4035. 

offer  of  judgment,  4036. 

amount,  4035,  4040. 

disbursements,  4041. 

COUNTY  TREASURER, 

custody  of  money  paid  into  court,  2017. 

effect  of  death  or  removal,  2023. 
order  of  arrest  in  action  against,  1285. 

COURTS  (see,  also,  "Rules  of  Court,"  "Judicial  Notice,"  "Jurisdiction," 
"Removal  of  Cause"), 

term  of,  see  "Term  of  Court." 

officers  of,  see  "Officers,"  "Clerks  of  Court,"  "Attorneys  at  Law," 

"Sheriffs,"  etc. 
contempt  of,  see  "Contempt." 
discretion  of,  see  "Discretion  of  Court." 
necessity  of  obtaining  leave  of,  see  "Leave  of  Court." 
definition,  96. 

idea  of  place  and  time  as  controlling  elements,  96. 
"court"  as  synonymous  with  "judges,"  97. 
classification,  98. 
courts  created  by  constitution  as  distinguished  from  courts  created 

by  legislature,  98. 
courts  of  general  and  of  inferior  jurisdiction,  99. 
courts  of  record  and  courts  not  of  record,  101. 
court  of  appeals,  see  "Court  of  Appeals." 
supreme  court,  see  "Supreme  Court,"  "Appellate  Division." 
county  courts,  see  "County  Court." 
municipal  courts,  see  "City  Courts." 


INDEX.  4419 

[references  are  to  pages.] 
COURTS— Cont'd. 

proceedings  on  Sundays  and  holidays,  103-105. 
place  for  holding  court,  112. 

change  of  place,  112,  4053. 
decisions  and  rules  of  decision,  113. 
necessity  for  written  decision  and  time  for  filing,  113. 
rule  of  stare  decisis,  114. 

general  rules  as  to  effect  of  decisions,  114,  4053. 
decision  of  supreme  court,  115. 
decisions  of  court  of  appeals,  115,  4053. 
decisions  of  courts  of  sister  states,  116. 

decisions  of  state  courts  in  federal  courts  and  vice  versa,  117. 
decisions  on  former  appeal  as  law  of  the  case,  118. 
sittings  of  court  are  public,  118. 
general  powers  of  courts  of  record,  118. 
name  of  in  summons,  715. 
name  of  in  title  of  complaint,  918. 
attorney  as  officer  of  court,  240. 
jurisdiction  where  property  is  outside  of  state,  129. 
publication  of  proceedings  of  court  as  criminal  contempt,  323. 
acts  of  officer  of  inferior  court  as  contempt,  331. 
inherent  power  to  allow  amendments,  1020. 
term,  see  "Terms  of  Court." 
rules,  see  "Rules  of  Court." 

power  of  courts  not  of  record  to  allow  amendment,  705. 
specifying  in  judgment,  2756. 

statement   in   docket  book  of  court  in  which  judgment  rendered, 
2792. 

COURT  OF  APPEALS, 

matters  relating  to  appeals  in  general,  see  "Appeals." 

costs,  see  "Costs  of  Appeal." 

dismissal,  see  "Dismissal  of  Appeal." 

notice  of  Appeal,  see  "Notice  of  Appeal." 

rehearing,  see  "Rehearing  on  Appeal." 

stay  pending  appeal,  see  "Stay  of  Proceedings  Pending  Appeal." 

history  of,  146. 

court  of  record,  101. 

decision  as  governing  other  courts,  115. 

duty  to  follow  decision  of  supreme  court,  116. 

establishment  of  rules  of  court,  106. 

jurisdiction,  147. 

exceptions  and  qualifications  as  to  jurisdiction,  148. 

jurisdiction  limited  by  constitution  and  statutes,  149. 

power  of  legislature  to  restrict  jurisdiction,  149. 


4420  INDEX. 

I  INFERENCES    ARE   TO   PAGES.] 

COURT  OF  APPEALS— Cont'd. 

officers,  149. 

associate  justices,  150. 

rules  of  court,  150. 

quorum  and  number  necessary  to  a  decision,  151. 

time  to  appeal,  3694,  and  see  "Appeals." 

I.  Judgments  and  Orders  Appealable. 

historical,  3606. 

code  provision,   3607. 

right  as  limited  by  statute,  3608. 

restriction  of  right,  3608. 

enlargement  of  right,  3608. 
"actual   determinations"  of  appellate  division,  3608. 
consent  as  conferring  jurisdiction,  3609. 
whether  judgment  or  order  must  be  appealed  from,  3609. 
final  judgments,  3610. 

appeal  from  "order"  of  appellate  division,  3612. 
interlocutory  judgments,  3612. 
final  order  in  special  proceedings,  3613. 

what  is  a  special  proceeding,  3614. 

what  is  the  "final"  order,  3615. 
order  granting  new  trial  on  exceptions,  3617. 

necessity  for  stipulation,  3619. 

estoppel  to  object  to  want  of  stipulations,  3619. 

relief  from  stipulation,  3619. 
appeal,  by  leave,  from  interlocutory  judgment  or  order,  3619. 

form  and  contents  of  questions  certified,  3621. 

questions  brought  up  for  review,  3621. 

judgment  or  order  from  which  appeal  to  be  taken,  3622. 
appeal  in  action  commenced  in  inferior  court,  3622. 
appeal  where  appellate  division  unanimously  affirms,  3623. 

what  is  a  judgment  of  affimance,  3624. 

what  it  a  "unanimous"  affirmance,  3624. 

II.  Leave  to  Appeal. 

judgments  or  orders  as  to  which  leave  to  appeal  is  necessary, 

3700. 
to  whom  application  to  be  made,  3700. 
time  for  motion,  3700. 
motion  papers,  3701. 

notice  of  motion,  3701. 
stay  of  proceedings  pending  application  for  leave,  3703,  3742. 
when  leave  to  appeal  should  be  granted,  3703. 


INDEX.  4421 

[references  are  to  pages.] 
€OURT  OF  APPEALS— Cont'd. 

order,  3705. 

allowance  nunc  pro  tunc,  3707. 
effect  of  leave  to  appeal,  3707. 

III.  Security  to  Perfect. 

necessity,  3726. 

appeal  by  people  or  officer,  3726. 

appeal  by  domestic  municipal  corporation,  3727. 

IV.  Papers  on  Appeal. 

contents  of  return  on  appeal  from  final  judgment,  3792. 

contents  of  return  on  appeal  from  order,  3792. 

certification,  3793. 

person  to  send  papers,  3794. 

time  for  transmission,  3794. 

filing,  3794. 

procedure  on  failure  to  file  return,  3795. 

defects  in  return,  3795. 

case,  2653,  2655,  2679,  3795. 

printing,  3796. 

filing  of  copies,  3796. 

service  on  attorney  for  adverse  party,  3796. 
case  on  appeal  from  judgment  on  verdict  subject  to  opinion 
of  the  court,  3797. 

V.  Briefs. 

filing  and  service,  3809. 

reply  and  supplemental  points,  3809. 

exceptions  to  rule,  3809. 

effect  of  violation  of  rule,  3810. 
contents,  3810. 

statement  of  facts,  3810. 

citation  of  authorities,  3811. 

VI.  Calendar  and  Order  of  Causes. 
new  calendar,  3815. 

notice  of  argument,  3816. 
order  of  causes,  3817. 

preferred  causes,  3818. 

exchange  of  causes  on  the  calendar,  3818. 

after  cause  is  called  and  passed,  3819. 

on  second  and  subsequent  appeals,  3819. 
day  calendar,  3819. 

causes  submitted,  3820. 

causes  reserved,  3820. 


4^22  INDEX. 

[references  are  to  pages.] 

COURT  OF  APPEALS— Cont'd. 

VII.  Hearing  and  Argument. 

postponement,  3828. 

submission  without  argument,  3829. 

time  allowed,  3829. 

motions,  3830. 

VIII.  Review  of  Questions  of  Fact. 

in  general,  3872. 

matters  of  discretion,  3873. 

IX.  Review  of  Questions  of  Law. 

on  appeal  from  unanimous  affirmance,  3875. 

affirmance  of  nonsuit,  3877. 

effect  of  leave  to  appeal,  3877. 

necessity  of  finding  by  appellate  division  that  there  is  evi- 
dence to  sustain  finding,  3877. 
evidence  to  sustain  finding,  3877. 

burden  of  showing  unanimity  of  affirmance,  3877. 
on  appeal  from  affirmance  by  divided  court,  3878. 
on  appeal  from  reversal  where  trial  without  a  jury,  3878. 

where  reversal  is  on  law,  3878. 

where  reversal  is  on  facts,  3879. 

where  reversal  is  both  on  law  and  facts,  3880. 

where  order  does  not  state  whether  reversal  is  on  law  or 
facts,  3881. 
on  appeal  from  reversal  where  trial  was  by  jury,  3882. 
on  appeal  from  order  granting  a  new  trial,  3884. 
on  appeal  by  leave  of  court,  3884. 
review  of  interlocutory  judgment  or  order  refusing  new  trial, 

3884. 
necessity  of  exceptions,  3885. 
review  of  constitutionality  of  statute,  3885. 

X.  Judgment. 

in  general,  3918. 

on  stipulation  from  judgment  absolute,  3918. 

on  appeal  from  order  granting  a  new  trial  on  the  facts,  3919. 

XI.  Remittitur. 

necessity,  3920. 

form  and  contents,  3920. 

filing,  3920. 

staying  the  filing,  3921. 

judgment  or  order  entered  on,  3922. 


INDEX.  4423 

[references  are  to  pages.] 

COURT  OF  APPEALS— Cont'd. 

effect  as  divesting  jurisdiction,  3924. 

amendment,  3925. 

return  of  assessment  of  damages  in  lower  court,  3926. 

assessment  of  damages,  2867. 

COURT  OF  CLAIMS, 
constitution,  213. 
general  jurisdiction,  213. 
court  of  record,  101. 

COURTHOUSE, 

place  for  holding  court,  112. 

destruction  or  bad  condition  as  ground  for  changing  place  for  hold- 
ing court,  113. 
place  for  holding  supreme  court,  163. 

COVENANT, 

nature  of  common  law  action,  23. 

time  within  which  to  bring  action  on,  469. 

when  actions  for  breach  accrue,  498. 

splitting  cause  of  action  for  breach  of,  55. 

place  of  trial  of  action  for  breach,  360. 

cause  of  action  to  enjoin  breach  and  for  forfeiture  as  inconsistent, 

72. 
technical  violation  of  as  ground  for  temporary  injunction,  1565. 

CREDIBILITY, 

charging  the  jury  as  to  credibility  of  witnesses,  2320,  2327. 
cross-examination  to  test  credibility  of  witness,  2245. 

CREDITORS'  SUITS, 

statutes  of  limitations,  472. 

limitations  as  bar  to  action  for  money  had  and  received  as  also 

barring  creditor's  suit,  451. 
classification  of  actions,  3382. 

(1)  actions  to  reach  property  not  subject  to  execution,  3382. 

(2)  actions  in  aid  of  an  execution,  3384. 

(3)  actions   against   insolvent  estate  by   persons   not  holding 
judgments,  3387. 

(4)  actions  in  aid  of  an  attachment,  1493,  3387. 
action  against  domestic  corporation,  3387. 
election  of  remedies,  3388. 

whether  action  based  on  contract,  3388. 


4424  INDEX. 

[REFERENCES    ARK   TO   PAGES.] 

CREDITORS'  SUITS— Cont'd. 

leave  to  sue,  3389. 

as  precluding  levy  of  second  execution,  3086. 

as  precluding  sale  on  execution,  3086. 

costs  as  matter  of  right,  2910,  2919. 

basis  of  computing  additional  allowance,  3016. 

I.  Exhaustion  of  Remedy  at  Law. 

necessity  in  general,  3389. 

exhaustion  of  remedy  against  several  defendants,  3392. 

supplementary  proceedings  as  condition  precedent,  3393. 

imprisonment  under  body  execution,  3393. 

kind  of  judgment,  3394. 

judgment  in  rem,  3394. 

judgment  of  federal  court  or  of  foreign  court,  3394. 

judgment  of  justice  of  the  peace,  3394. 
time  of  recovery  of  judgment,  3394. 
judgment  against  executor,  3394. 
docketing  of  judgment,  3395. 
proceeding  on  two  or  more  judgments,  3395. 
existence  and  validity  of  judgment,  3395. 

collateral  attack,  3396. 

appeal  from  judgment,  3396. 

effect  of  opening  judgment,  3396. 
issuance  of  execution,  3396. 

time,  3397. 

issuance  out  of  court  of  record,  3397. 

to  what  county,  3397. 

effect  of  irregularity  in  execution,  3398. 
return  of  execution,  3398. 

time,  3398. 

sufficiency,  3399. 

false  return  of  nulla  bona,  3399. 

II.  Property  Which  May  be  Reached. 

after-acquired  property,  3400. 

joint  property,  3400. 

exempt  property,  3401. 

earnings  for  personal  services,  3401. 

interest  in  contract  for  purchase  of  land,  3401. 

trust  property,  3401. 

what  constitutes  a  trust  created  by  a  third  person,  3402. 

who  may  reach  surplus,  3403. 

income  in  excess  of  sum  necessary  for  support,  3403. 
resulting  trusts,  3404. 


INDEX.  4425 

[references  are  to  pages.] 

CREDITORS'  SUITS— Cont'd, 
contingent  rights.  3404. 

dower  right,  3405. 
annuity,  3405. 
legacy,  3405. 

interest  as  next  of  kin,  3405. 
rents  and  profits,  3405. 
excise  license,  3405. 
patented  inventions,  3406. 
cause  of  action,  3406. 
right  conferred  by  statute,  3406. 
rights  and  interests  in  insurance  policies,  3406. 
collateral  security,  3407. 
property  fraudulently  conveyed,  3407. 

III.  Pleadings. 

complaint,  3407. 

averments  as  to  judgment,  3408. 

averments  as  to  execution,  3408. 

averments  as  to  insolvency,  3409. 

averments  as  to  fraud,  3409. 

description  of  property,  3410. 

averment  as  to  existence  of  surplus  income,  3410. 

prayer  for  relief,  3410. 

joinder  of  causes  of  action,  3410. 
answer,  3410. 
variance  between  pleadings  and  proof,  3411. 

IV.  Parties  to  Action. 
plaintiff,  3411. 

assignee,  3412. 
joinder  of  plaintiffs,  -3412. 
proper  defendants,  3413. 
necessary  defendants,  3414. 

assignor,  3415. 

assignee,  3415. 

remote  grantees,  3415. 

other  creditors  of  judgment  debtor,  3416. 

beneficiary  under  assignment,  3416. 

stockholders  of  assignee,  3416. 

representatives  of  judgment  debtor,  3417. 

V.  Lien. 

when  created,  3417. 

action  to  remove  obstruction,  3418. 
action  to  reach  equitable  assets,  3418. 


442G  index. 

[references  are  to  pages.] 
CREDITORS'  SUITS— Cont'd. 

extent,  3419. 

relation  back,  3419. 

duration,  3419. 

priority  between  creditors  bringing  separate  actions,  3420.. 

waiver  of  lien  of  judgment,  3420. 

VI.  Injunction. 

exhaustion  of  remedy  at  law,  3421. 
procedure,  3421. 
violation  of  injunction,  3421. 
vacation,  3422. 

VII.  Receiver. 

necessity,  3423. 

propriety  of  appointing  a  receiver,  3423. 

discretion  of  court,  3424. 

double  receivership,  3424. 
new  receiver,  3425. 

VIII.  Judgment. 

in  Code  actions,  3425. 

in  actions  to  reach  surplus  income,  3425. 

in  actions  to  remove  an  obstruction,  3426. 

money  judgment,  3429. 

interlocutory  judgment,  3429. 
time  of  rendition,  3430. 
reaching  interest  in  land  contract,  3430. 
conformity  to  relief  prayed  for,  3431. 
construction,  3431. 
vacation,  3432. 
enforcement  after  death  of  judgment  debtor,  3075. 

IX.  Actions  Against  Insolvent  Estates. 

statutes,  3432. 

conditions  precedent,  3433. 

necessity  that  fraud  exist,  3434. 

who  may  sue,  3434. 

defendants,  3435. 

pleading,  3435. 

judgment,  3436. 

bringing  of  action  by  creditor  as  election  of  remedies,  3436. 

CRIMINAL  CONVERSATION, 

right  to  acquire  bill  of  particulars,  868. 
time  within  which  to  sue,  482. 
costs  as  of  right,  2915. 


INDEX.  4427 

[references  are  to  pages.] 

CRIMINAL  LAW  (see,  also,  "Misdemeanors"), 

criminal  as  distinguished  from  civil  contempt,  317-319. 

acts  constituting  criminal  contempt,  319-323. 

arrest  in  civil  action  of  persons  brought  within  state  by  criminal 

proceeding,  1301. 
discharge  from  criminal  arrest  as  affecting  civil  arrest,  1303. 
exemption  of  prisoner  from  liability  to  arrest  in  civil  action  while 

en  route,  1313. 
conviction  of  party  as  abating  action,  2063. 
examination  of  prisoner  as  party  before  trial,  1777,  1807. 
imprisonment  of  defendant  on  criminal  charge  as  affecting  accrual 

of  liability  of  bail,  1370. 

CRIMINATING  QUESTIONS, 

right  to  refuse  to  answer,  2232. 

CROPS, 

execution  against,  3106. 

CROSS-EXAMINATION   (see  "Examination  of  Witnesses"). 

CUMULATIVE  EVIDENCE, 

newly-discovered  evidence  as  ground  for  new  trial,  2706. 

CUMULATIVE  REMEDIES, 

definition,  39. 

civil  and  criminal  remedies,  40. 

actions  for  personal  injuries,  4045. 

enforcement  of  lien  and  debt,  40. 

remedies  affecting  corporations,  40. 

enforcement  of  judgment,  41. 

proceedings  relating  to  real  property,  41. 

enforcement  of  attorney's  lien,  306. 

effect  of  pendency  of  another  action  where  remedies  are  cumula- 
tive, 49. 

order  requiring  payment  or  delivery,  in  supplementary  proceed- 
ings, 3328. 

CURTESY, 

estate  as  subject  to  execution,  3139. 

estate  as  vesting  in  receiver  in  supplementary  proceedings,  3366. 

CUSTODIAN  (see,  also,  "Sheriffs"), 

rights  and  duties  where  money  paid  into  court,  2019. 


4428  INDEX. 

[references  are  to  pages.] 

CUSTODY  OF  THE  LAW, 

property  in  custody  of  receiver,  1623. 

right  to  attach  property  in  the  custody  of  the  law,  1414. 

interference  with  property  in  custody  of  law  as  civil  contempt,  329. 

CUSTOMS, 

jurisdiction  of  action  against  custom  officer,  140. 

D. 

DAMAGES, 

writ  of  assessment  of  within  jurisdiction  of  supreme  court,  158. 

amendment  after  trial  to  conform  to  the  proof,  1037. 

inquisition  to  assess  damages  on  Sunday,  105. 

adding  allegation  of  as  stating  new  cause  of  action,  1035. 

allegations  in  aggravation  of  as  constituting  cause  of  action,  62. 

pleading,  925. 

for  misconduct  of  attorney,  242. 

admissibility  of  evidence  as  to,  under  general  denial,  947. 

opening  default  to  permit  evidence  in  mitigation  of,  2871. 

increased  damages,  how  and  by  whom  calculated,  2769. 

review  as  dependent  on  case  containing  all  the  evidence,  2666. 

new  trial  where  excessive  or  inadequate,  2695. 

new  trial  to  recover  nominal  damages,  2688. 

review  on  appeal  where  no  motion  for  new  trial,  2685. 

penalty  for  clerk's  neglect  to  docket  judgment,  2795. 

amount  in  action  on  undertaking  to  procure  injunction,  1611. 

assessment  by  jury  after  trial,  2361. 

charge  of  judge  as  to,  2320. 

direction  in  decision  as  to  increased  damages,  2382. 

failure  to  obey  order  to  produce  papers  on  trial,  1971. 

liability  on  undertaking  to  procure  injunction,  1604. 

matter  in  mitigation  in  action  for  wrongful  attachment,  1546. 

measure  of  in  action  for  wrongful  attachment,  1547. 

offer  to  liquidate  if  plaintiff  succeeds,  2003. 

recovery  for  failure  to  obey  supoena,  1979. 

statement  as  to  in  affidavit  to  obtain  attachment,  1442. 

tender  of  unliquidated  damages,  2006. 

DATE, 

order,  619,  1584. 

summons,  721. 

dating  order  in  advance  as  ground  for  vacation,  636. 

report  of  referee,  2616. 

judgment,  2758. 


index.  4429 

[references  are  to  pages.] 
DAY, 

definition,  695. 

computing  fractions  of,  2796. 

DEATH, 

of  plaintiff,  as  affecting  pendency  of  action,  47. 

effect  of  death  of  joint  obligor  on  liability,  397,  398. 

substitution  of  attorney,  280. 

of  client  as  precluding  attorney's  lien,  290. 

as  suspending  running  of  limitations.  507-509. 

of  person  in  possession  of  real  property,  effect  on  statute  of  limita- 
tions, 464,  465. 

computation  of  time  to  sue  where  cause  of  action  accrues  between 
death  and  grant  of  letters,  501,  502. 

effect  of  death  pending  publication  of  summons,  779. 

ascertaining  damages  under  injunction  undertaking  where  defend- 
ant has  died  before  trial,  1606. 

as  vacating  attachment,  1529. 

continuance  on  death  of  sole  party,  2079. 

continuance  on  death  of  co-party,  2092. 

effect  of  death  of  owner  of  attached  property  before  service  of  sum- 
mons on  him,  1388. 

of  defendant  as  exonerating  bail,  1364. 

of  part  of  defendants  as  discharging  undertaking  given  to  discharge 
attachment,  1511. 

of  sole  party  to  a  special  proceeding,  2072. 

severance  of  action  on  death  of  defendant,  1706. 

terminating  homestead  exemption,  1426. 

what  actions  abate  on  death  of  party,  2064,  2078. 

execution  after  death  of  debtor,  3073. 

execution  after  death  of  defendant  in  ejectment,  3073. 

execution  after  death  of  creditor,  3068. 

judgment  entered  against  party  after  his  death,  as  a  lien,  2790. 

as  terminating  reference,  2556. 

of  party  as  ground  for  setting  aside  judgment,  2817. 

default  judgment  after  death  of  party,  2849. 

who  may  move  to  vacate  judgment  after  death  of  party,  2822. 

judgment  by  confession  after  death  of  defendant,  2887. 

of  party  as  precluding  extra  allowance,  2997. 

of  party  as  affecting  judicial  sale,  3219,  3226. 

of  debtor  as  divesting  lien  created  by  creditor's  suit,  3419. 

extension  of  receivership  in  supplementary  proceedings  after  death 
of  debtor,  3357. 

of  debtor  as  preventing  execution  sale,  3127. 

of  imprisoned  debtor  as  authorizing  new  execution  against  prop- 
erty, 3087,  3214. 


44:10  INDEX. 

1  KKKKKKM'KS    ARE    TO    PAGES.] 

DEATH— Cont'd. 

of  stenographer  as  ground  for  new  trial,  2655. 

of  receiver  in  supplementary  proceedings,  3358. 

of  receiver  appointed  in  creditor's  suit,  3425. 

of  sheriff  before  return  of  execution,  effect,  3058. 

noting  death  of  party  on  docket  of  judgment,  2793. 

entry  of  memorandum  of  in  judgment  book,  2782. 

indorsement  on  execution  of  death  of  part  of  judgment  debtors, 

3098. 
substitution  of  parties  on  appeal,  3673. 

DEATH  BY  WRONGFUL  ACT, 

time  within  which  to  sue,  483. 

adding  interest  to  judgment,  2784. 

costs  as  matter  of  right  in  action  for,  2915. 

basis  for  computing  extra  allowance  of  costs,  3019. 

body  execution,  3198,  note. 

arrest  in  action  to  recover  damages,  1280. 

attachment  of  property  in  action  for  damages,  1393. 

action  abated  by  death  of  wrongdoer,  2066,  2070. 

DE  BENE  ESSE, 

bill  to  take  testimony,  1717. 

DEBT, 

nature  of  common  law  action,  23. 
levy  on,  3108. 

DECEDENTS'  ESTATES  (see  "Estates  of  Decedents"). 

DECEIT  (see,  also,  "Fraud,"  "Concealment"), 
ground  for  disbarment  of  attorney,  250. 
ground  for  civil  contempt,  32. 
body  execution,  3199. 
abatement  of  action  by  death,  2071. 
order  of  arrest,  1282. 

DECISION  (see,  also,  "Stare  Decisis,"  "Courts"), 
meaning  of  word  when  used  in  Code,  2376. 
necessity,  2378,  4165. 
preparation,  2379,  4165. 
signature,  2379. 
contents,  2379. 

findings  of  fact,  2379. 

conclusions  of  law,  2381,  4165. 
time  for  filing,  2383. 


INDEX.  4431 

[references  are  to  pages.] 

DECISION— Cont'd. 

service,  2383. 

amendment,  2384. 

decision  on  issue  of  law,  2384. 

effect  of  want  of,  or  defects  in,  on  appeal,  2384. 

effect  of  death  of  party  after,  2100. 

leave  to  discontinue  after,  2110. 

time  for  decision  of  application  for  provisional  remedy,  1269. 

on  demurrer,  1014. 

including  in  case,  2662. 

service  to  limit  time  to  prepare  case,  2657. 

failure  to  file  as  ground  for  new  trial,  2714. 

want  of,  amendment  of  judgment,  2811. 

insufficiency  as  ground  for  vacating  judgment,  2816. 

amendment  of  judgment  where  it  fails  to  conform  to,  2809. 

judgment  on,  2769. 

setting  forth  in  judgment,  2756. 

exceptions  to,  2385,  4165. 

DECREE  (see,  also,  "Judgment"), 

when  enforcible  by  execution,  3059. 

DEED, 

judicial  sale,  3243. 

sheriff's  deed  on  execution  sale,  3155. 

of  guardian  ad  litem,  2049. 

DE  FACTO, 

de  facto  judges,  221. 

DEFAULT, 

as  terminating  relation  of  attorney  and  client,  262. 

of  opposing  party  on  hearing  of  motion,  613. 

denial  of  motion  to  open  where  against  instructions  of  client,  269. 

opening  order  by  default,  635. 

denial  of  motion  by  default  as  bar  to  renewal,  641. 

relief  after  expiration  of  time  in  general,  693. 

relief  from  default  in  serving  case,  2659. 

in  "filing"  case,  2675. 

in  serving  complaint,  2131. 

appeal  from,  3651. 

DEFAULT  JUDGMENT, 

default  of  part  of  defendants  jointly  liable,  2848. 
extent  of  relief  where  there  is  no  answer,  2763,  4173. 
as  authorizing  judgment  in  favor  of  co-defendant,  2761. 


4432  INDEX. 

[jHOTEBENCES    ABE   TO   PAGES.] 
DEFAULT  JUDGMENT— Cont'd, 
death  of  defendant,  2849. 
judgment  against  infant,  2849. 
actions  against  corporations,  2849. 
actions  against  municipal  corporations,  2850. 
entry  without  application  to  the  court,  727,  2851. 
notice  to  defendant,  2853. 
proof,  2853. 

amount  of  judgment  and  how  ascertained,  2855. 
entry  on  application  to  the  court  where  summons  personally  served,. 
2855. 
to  whom  and  where  application  should  be  made,  2856. 
notice,  2857. 
proof,  2858. 
entry  on  application  to  the  court  where  service  of  summons  is  by 
publication,  2858. 
notice,  2858. 
proof,  2858. 

examination  of  plaintiff  as  to  payments,  2859. 
requiring  plaintiff  to  file  undertaking,  2859. 
judgment,  2859. 
withdrawal  of  application  for  judgment,  2860. 
second  application  to  another  judge,  2860. 
matters  admitted  by  default,  2860. 
legal  conclusions,  2860. 
in  ejectment,  2860. 
right  to  defend  after  judgment  where  service  by  publication,  781. 
ascertaining  amount  of  damages,  2861. 
mode,  2861. 
review,  2S61. 
reference  and  writ  of  inquiry,  2861,  4173. 
the  writ,  2862. 

where  executed,  2862. 
notice,  2862. 

mode  of  executing  writ,  2863. 
inquisition,  2864. 
subsequent  procedure,  2865. 
new  hearing  or  new  writ,  2866. 
setting  aside,  2867. 
assessment  after  remittitur  from  court  of  appeals,  2867,  4173. 
judgment  as  enforcible  by  execution,  3059,  3065. 
commission  to  examine  witness  outside  of  state  where  party  has 

defaulted,  1732. 
appeal  from,  3651. 


INDEX.  4433 

[references  are  to  pages.] 

DEFAULT  JUDGMENT— Cont'd. 
I.  Opening  Default. 

jurisdiction,  2869,  4173. 
grounds,  2869,  4173. 

absence  of  party,  2869. 

illness  of  party,  2869. 

infancy  of  defendant,  2870. 

absence  of  defendant's  attorney,  2870,  4173. 

ignorance  or  incompetency  of  counsel,  2870. 

fraud,  2870. 

discharge  in  bankruptcy,  2870. 

mistake  of  clerk  in  entering  judgment,  2870. 

greater  relief  than  demanded,  2871. 
grounds  for  refusing,  2871. 

deceit  of  party,  2871. 

payment  of  judgment,  2871. 

denial  of  motion  to  set  aside  inquest,  2871. 

unconscionable  defense,  2871. 
effect  of  stipulations  and  agreements,  2871. 
who  may  move,  2872. 

personal  representatives,  2872. 
time  for  motion,  2872. 
notice  of  motion,  2873. 

to  whom  given,  2873. 

contents,  2873. 
motion  papers,  2873. 

affidavit  of  merits,  2874. 

copy  of  proposed  answer,  2874. 
hearing,  2875. 

reference,  2875. 

burden  of  proof,  2875. 

discretion  of  court,  2875,  4174. 
imposing  terms,  2785,  4174. 

requiring  undertaking,  2876. 

requiring  judgment  to  stand  as  security,  2877. 
validity  of  stipulation  by  attorney,  2878. 

opening  as  extending  lien  of  judgment  beyond  ten  years,  2802. 
opening  of  default  for  failure  to  appear,  2171. 
opening  where  no  guardian  ad  litem  is  appointed  for  infant  de- 
fendant, 2041. 
DEFECTS, 

general  regulations  respecting,  vol.  1,  698. 

DEFENDANTS  (see,  also,  "Unknown  Defendants"), 
joinder,  see  "Joinder  of  Parties." 
those  who  may  sue  may  be  sued,  392. 
N.  Y.  Prac—  278. 


4434  index. 

[references  are  to  pages.] 

DEFENDANTS— Cont'd. 

party  plaintiff  cannot  be  defendant,  392,  4070. 

Code  rule,  393. 

unknown  defendant,  393. 

remedies  open  to  defendant,  935. 

discontinuance  as  to  part  of,  2110. 

in  creditor's  suit,  3413-3417. 

default  of  part  of,  2848. 

default  judgment  after  death  of,  2849. 

effect  on  reference  of  bringing  in  new  parties,  2556. 

affirmative  relief  to,  2762. 

judgment  against  part  of,  2759. 

judgment  against  co-defendant,  2760. 

right  to  costs  as  of  course,  2906. 

costs  as  against  co-defendant,  2931. 

costs  where  part  of  defendants  are  successful,  2932. 

costs  where  there  are  several  successful  defendants,  2940. 

right  to  extra  allowance  of  costs  as  against  co-defendant,  3000. 

DEFENSES  (see,  also,  "Answer"), 

anticipating  defenses  in  complaint,  925. 

amendment  after  trial  by  striking  out  one  of  two  inconsistent  de- 
fenses, 1036. 

power  to  amend  at  trial  by  adding  new  defense,  1029. 

power  to  set  up  new  defense  before  trial,  1027. 

power  to  compel  election  between  defenses,  1086. 

striking  out  defense  as  sham,  1077. 

requiring  waiver  of  other  defenses  as  condition  of  allowing  filing  of 
supplemental  answer,  1058. 

denials  in  answer  as  distinguished  from  defenses,  943,  3006. 

joinder  of  denials  and  defenses  in  answer,  949. 

grounds  of  demurrer  to  defenses,  1003. 

contents  of  demurrers  to  defenses,  1007. 

amendment  to  conform  pleadings  to  proof  by  introducing  new  de- 
fense, 1033. 

applicability  of  statute  of  limitations,  443,  444. 

termination  of  action  by  dismissal,  discontinuance  or  death,  as  af- 
fecting limitations  applicable  to  defense,  513. 

right  to  demur  to,  1002. 

amendment  of  answer  by  setting  up  new  defenses,  1024. 

demurrer  as,  3006. 

DEFINITENESS, 
in  pleading,  839. 

illustrations  of  facts  required  to  be  definitely  stated  in  pleading, 
847. 


INDEX.  4435 

[references  are  to  pages.] 
DEFINETENESS— Cont'd. 

time,  847. 

place,  848. 

quantity,  quality  and  value,  848. 

names  of  persons,  848. 

subject-matter  of  the  action,  848. 

title,  848. 
statutory   exceptions    to   general    rules   requiring   definiteness    and 
certainty.  849. 

pleading  private  statute,  849. 

pleading  items  of  an  account,  851. 

pleading  judgments,  851. 

pleading  performance  of  conditions  precedent,  852. 

pleading  cause  of  action  founded  on  instrument  for  payment 
of  money  only,  854. 

proceedings  in  libel  and  slander,  855. 
ground  of  demurrer,  1001,  1003,  1005. 
remedy  where  pleading  is  uncertain,  1063,  4124. 
of  questions  to  witnesses,  2231. 

DEFINITIONS, 

cause  of  action,  52. 

subject  of  action,  53,  68. 

object  of  action,  53. 

action,  10. 

election  of  remedies,  41,  42. 

transaction,  66. 

special  proceedings,  12. 

ordinary  proceedings,  12,  13. 

courts,  96. 

cumulative  remedies,  39. 

DELIVERY, 

of  execution  to  sheriff,  3088. 

as  equivalent  to  a  levy,  3117. 
in  supplementary  proceedings,  3328  et  seq. 

DEMAND, 

general  necessity,  80. 

where  agreement  is  for  payment  of  money,  80. 

where  money  is  received  or  collected  for  another's  use,  80. 

where  money  is  paid  by  mistake,  80. 

where  inn-keeper  loses  property  of  guest,  81. 

for  rent,  81. 

before  suing  on  negotiable  instruments,  81. 


4436  INDEX. 

[references  are  to  pages.] 
DEMAND— Cont'd. 

where  action  is  against  common  carrier,  81. 

before  suing  for  conversion,  82,  4051. 

sufficiency  of,  83,  4051. 

before  bringing  replevin,  82. 

excuses  for  omission  to  make  demand,  82. 

necessity  before  action  on  bond  or  undertaking,  687. 

condition  to  contempt  proceedings  for  disobedience,  336. 

necessity  to  start  running  of  statute  of  limitations,  490-494. 

for  copy  of  account,  857. 

for  judgment,  in  complaint,  927. 

as  election  of  remedy,  44. 

for  relief,  in  answer,  942. 

for  copy  of  complaint,  881. 

condition  to  attachment  in  proceedings  by  client  against  attorney, 

287. 
for  change  of  place  of  trial,  1940. 
of  notice  of  reference  or  writ  of  inquiry  where  judgment  by  default, 

2862. 
subscription,  2862. 
for  consolidation  of  actions,  1697. 
for  allowance  of  inspection  of  papers,  1841. 
as  condition  of  action  on  undertaking  to  obtain  arrest,  1329. 

DEMURRERS, 

definition,  nature  and  kinds,  993. 
time  to  demur,  995. 

pleadings  subject  to  demurrer,  995,  4112. 
grounds  of  demurrer  to  complaint,  996. 

want  of  jurisdiction  of  the  person  of  the  defendant,  996. 

want  of  jurisdiction  of  subject'  of  action,  996. 

want  of  legal  capacity  to  sue,  997,  4112. 

pendency  of  another  action,  997. 

misjoinder  of  parties  plaintiff,  998,  4113. 

defect  of  parties  plaintiff  or  defendant,  998,  4113. 

misjoinder  of  causes  of  action,  999,  4113. 

failure  to  state  cause  of  action,  999,  4113. 
objections  to  complaint  not  ground  of  demurrer,  1001,  4114. 
grounds  of  demurrer  to  answer,  1002,  4114. 

defenses,  1003,  4114. 

counterclaims,  1004,  4116. 
grounds  of  demurrer  to  reply,  1004. 
joint  and  several  demurrers,  1005,  4116. 
contents  of  demurrer,  1005. 

demurrer  to  defense,  1007. 

demurrer  to  counterclaim,  1007. 


index.  4437 

[references  are  to  pages.] 

DEMURRERS— Cont'd. 

hearing  on  demurrer,  1010,  4116. 

admissions  by  demurrer,  1012,  4116. 
demurrer  as  opening  the  record,  1013,  4116. 
decision  on  demurrer,  1014,  2621,  4116. 
right  to  amend,  1021. 

place  of  trial  of  issue  of  law  on  demurrer,  364,  365. 
waiver  of  objections  to  rulings  on  demurrer,  1092. 
striking  out  demurrer  as  sham,  1076. 
to  part  of  pleading,  994. 

right  of  one  defendant  to  demur  while  other  answers,  994. 
judgment  on  the  pleadings  on  ground  that  demurrer  is  frivolous, 

1072. 
extension  of  time  to  answer  as  extending  time  to  demur,  940. 
right  to  both  answer  and  demurrer  at  the  same  time,  994. 
manner  of  raising  objection  that  infant  plaintiff  appears  without 

guardian  ad  litem,  92. 
striking  out  of  demurrer  as  amendment,  1024. 
construction  of  pleading  as  against  demurrer,  906. 
to  demand  for  judgment  in  complaint,  927. 
power  to  compel  election  between  answer  and  demurrer,  1086. 
withdrawal  of  demurrer  and  service  of  answer,  1025. 
costs  on  sustaining,  2934. 
costs  to  abide  the  event,  2938. 
amount  of  costs  for  trial  of,  2966. 
double  costs,  2993. 
as  equivalent  to  an  answer,  2764. 
judgment  after  trial  of,  2774. 
judgment  as  final  or  interlocutory,  2754. 

DENIALS   (see,  also,  "Defenses,"  "Answer"), 

motion  to  make  more  definite  and  certain,  1064. 

right  to  amend  as  of  course,  1022. 

striking  out  as  sham,  1076. 

application  for  judgment  on  ground  of  frivolous  denials,  1071. 

right  to  demur  to,  1002. 

DEPARTURE, 

in  reply,  991,  1005. 

intent  to  depart  from  state  as  ground  for  taking  deposition,  1721. 

DEPOSIT    (see,  also,  "Banks"), 
judicial  sales,  3242. 
of  moneys  paid  into  court,  2018. 
as  security  for  costs,  1905. 


4438  index. 

[REFERENCES    ARE   TO   PAGES.] 

DEPOSIT— Cont'd. 

as  substitute  for  bail,  1373. 

in  lieu  of  receivership,  1627. 

condition  precedent  to  interpleader,  1861. 

rigbt  to  attach  money  deposited  with  the  clerk  of  court,  1415. 

right  of  sheriff  to  sue  to  reach  deposit  in  lieu  of  bail,  1492. 

when  limitations  begin  to  run  against  action  to  recover,  492-494. 

to  stay  proceedings  pending  appeal,  3742. 

DEPOSITARIES, 

right  of  mere  depositary  to  sue,  387. 

DEPOSITIONS   (see,  also,  "Perpetuating  Testimony,"  "Examination  of 
Party  before  Trial,"  "Discovery  and  Inspection"), 

definition,  1715. 

bill  of  discovery,  1716. 

bill  and  order  de  bene  esse,  1717. 

bill  to  perpetuate  testimony,  1718. 

difference  between  affidavit  and  deposition,  535. 

compelling  making  of  deposition  for  purpose  of  motion,  578  et  seq. 

power  of  county  judge  to  allow  taking,  190. 

amount  of  costs  for  taking,  2965. 

contents,  etc.,  where  party  examined  before  trial  within  state,  1812. 

postponement  of  trial  to  permit  taking  of,  2025. 

annexing  report  of  physician  on  examination  of  party  before  trial, 

1822. 
right  to  read  in  evidence  where  action  has  been  consolidated,  1701. 

I.  Depositions  Taken  Outside  of  State. 
three  methods  of  examination,  1728. 
commissions,  1728. 

order  directing  that  depositions  be  taken,  1729. 
letters  rogatory,  1730. 

commission  obtained  by  application  or  stipulation,  1731. 
commission  or  order  by  consent,  1731. 
cases  in  which  examination  may  be  issued,  1732. 

judgment  by  default,  1732. 

to  obtain  testimony  to  carry  judgment  into  effect,  1732. 

to  obtain  testimony  for  use  on  a  new  trial,  1732. 

where  witness  is  sick  or  is  about  to  move,  1732. 

after  joinder  of  issue  of  fact,  1732. 

in  special  proceedings,  1733. 
who  may  be  examined,  1733. 
second  commission,  1734. 


INDEX.  4439 

[  REFERENCES    ARE    TO    PAGES.] 

DEPOSITIONS— Cont'd. 

the  application,  1732,  4140. 
time,  1735,  4140. 
to  whom  to  be  made,  1736. 
notice,  1736. 
opposing  papers,  1736. 
curing  defects,  1736. 
renewal  of  motion,  1736. 
grounds  for  refusing  commission,  1737. 
the  order,  1738. 

granting  of  order  as  discretionary,  1738. 
order  made  by  judge  out  of  court,  1739. 
terms,  1739. 

directing  interrogatories  and  answers  to  be  in  foreign  lan- 
guage, 1739. 
the  interrogatories — settlement,  1740. 
allowing  or  disallowing,  1742. 
annexation  to  commission,  1743. 
the  commission,  1743. 
the  commissioners,  1748. 

open  commission  or  commission  partly  open,  1749,  4140. 
when  granted,  1749,  4140. 
direction  and  contents,  1752,  4140. 

service  of  notice  of  time  and  place  for  examination,  1753. 
examination  under  open  commission,  1753. 
rules  of  closed  commission  as  applicable,  1754. 
who  may  execute,  1754. 
administering  oath  to  witness,  1755. 
the  taking  of  the  testimony,  1755. 
exhibits,  1756. 

examination  to  be  written  out  and  signed,  1757. 
the  return,  1758. 
delivery  by  agent,  1760. 

indorsement  and  filing,  1761. 
return  by  mail  and  proceedings  thereon,  1761. 
suppressing  deposition,  1761. 
ground,  1762. 
procedure,  1763. 
amendment  and  re-execution,  1763. 
admissibility  and  objections,  1764,  4141. 
effect  of  witness  being  present  in  court,  1767,  4141. 
who  may  read  and  how  much,  1767. 
sufficiency  of  objections,  1768. 
admissibility  as  to  part  of  the  parties,  1768. 


4440  INDEX. 

|  KIIKREXCES    ABE    TO    PAGES.] 

DEPOSITIONS— Cont'd. 

admissibility  in  another  proceeding  or  on  new  trial,  1768. 
effect  of  amendment  of  the  pleadings,  17G9. 
impeachment  of  testimony,  17G9. 

II.  Depositions  Taken  Within  the  State. 

procedure,  1770. 

petition,  1771. 
grounds  for  denying  petition,  1772. 
subpoena — contents,  1772. 

subpoena  duces  tecum,  1772. 
service,  1773. 

vacation  or  modification,  1773,  4141. 
taking  and  return  of  deposition,  1773. 

procedure  in  case  of  failure  to  obey  subpoena  or  to  testify, 
1773,  4141. 

order  and  effect  of  disobedience  thereto,  1774. 

DEPOSIT  OF  PROPERTY, 

order  and  punishment  for  violation,  1658. 

DESCENT  CAST  (see  "Statute  of  Limitations"). 

DETERMINATION  OF  CLAIMS  TO  REAL  PROPERTY, 

cumulative  remedy,  41. 

jury  trial,  2142. 

additional  allowances,  2995. 

DETINUE, 

nature  of  common  law  action,  23. 

"DIFFICULT  AND  EXTRAORDINARY"  CASES, 
what  are,  3002. 

DEVISEES  (see  "Heirs,  Legatees,  and  Devisees"). 

DEVOLUTION  OF  LIABILITY, 

effect  after  commencement  of  action,  2072. 

DILATORY  PLEAS, 

what  are,  956,  and  see  "Answer." 

DIRECTED  VERDICT  (see  "Taking  Case  from  Jury"). 

DIRECTORS   (see  "Corporations"). 


INDEX.  4441 

[references  are  to  pages.] 
DISABILITIES, 

as  affecting  limitations,  see  "Statute  of  Limitations." 

DISBARMENT  (see,  also,  "Attorneys"), 

substitution  of  attorney  on  disbarment,  280,  281. 

DISBURSEMENTS, 

as  distinguished  from  costs,  2900,  2977. 
witness  fees,  2978. 

where  witness  attends  without  a  subpoena,  2978. 

where  witness  does  not  attend,  2978. 

where  witness  departs  before  trial,  2979. 

where  witness  attends  at  a  term  at  which  trial  could  not  be 
had,  2979. 

where  witness  does  not  testify,  2979. 

where  witness  is  attorney  or  party,  2980. 

where  witness  attends  in  behalf  of  different  parties,  2135. 

where  witness  is  subpoenaed  in  two  or  more  cases,  2135. 

number  of  days'  attendance,  2981. 

travel  fees,  2982. 

payment  of  fees  as  condition  precedent,  2983. 
compensation  of  expert  witnesses,  2984. 
fees  of  referee,  2983. 

proof  of  number  of  days  referee  acted,  2984. 
fees  of  commissioner,  2985. 
jury  fees,  2985. 
stenographer's  fees,  2985. 

on  reference,  2987. 
surveyors'  fees,  2987. 
sheriff's  fees,  2988. 
documentary  evidence,  2988. 

searches,  2989. 
printing  expenses,  2989. 

expenses  relating  to  judgment  and  execution,  2990. 
service  of  papers,  2990. 
increased'  or  double  disbursements,  2994. 
affidavit  of,  3028. 
on  appeal,  see  "Costs  on  Appeal." 

DISCHARGE, 

of  sureties  from  liability  on  bond  or  undertaking,  684. 

of  receiver,  1656. 

of  jury  on  failure  to  agree,  2351. 

of  judgment,  2834. 

of  receiver  in  supplementary  proceedings,  3358. 


4442  INDEX. 

[references  are  to  pages.] 
DISCHARGE— Cont'd. 

from  imprisonment  on  body  execution,  3211. 

by  lapse  of  time,  3212. 

by  direction  of  execution  creditor,  3213. 

new  body  execution,  3214. 
of  imprisoned  debtor  as  authorizing  new  execution  against  prop- 
erty, 3087. 

DISCONTINUANCE, 

implied  power  of  attorney  to  discontinue  action,  271. 

after  submission  of  controversy,  37. 

as  affecting  election  of  remedy,  45. 

as  affecting  pendency  of  action,  47. 

amendment  by  substituting  parties  as  discontinuance,  1048. 

addition  of  time  within  which  to  sue  where  plaintiff  discontinues, 

509,  510. 
right  to  discontinue  in  general,  2104. 
agreements  to  discontinue,  2107. 
condition  of  cause,  2107. 

after  filing  of  counterclaim,  2108. 
after  interlocutory  decision,  2109. 
after  verdict  or  decision,  2110. 
waiver  of  right  to  discontinue,  2110. 
discontinuance  as  to  one  or  more  co-defendants,  2110. 
discontinuance  by  submission  to  arbitration,  2111. 
necessity  of  obtaining  leave  of  court,  2111. 
motion,  2112. 

who  may  move,  2112. 
time  for  motion,  2113. 
notice  of  motion,  2113. 
motion  papers,  2113. 
order,  2114. 

costs,  2116,  3006,  4156. 

imposing  conditions  other  than  payment  of  costs,  2121,  3006, 
4156. 
operation  and  effect,  2122. 
as  discharging  receiver,  1657. 
consolidation  of  actions  as  effecting,  1700. 
by  postponement  not  at  request  of  party,  2035. 
excuse  for  violation  of  injunction  order,  1589. 
accrual  of  liability  on  undertaking  to  procure  injunction,  1605. 
as  fixing  liability  on  undertaking  to  obtain  arrest,  1330. 
right  of  sheriff  to  discontinue  action  in  aid  of  attachment,  1492. 
of  supplementary  proceedings,  3345. 

by  appointment  of  receiver,  3360. 
costs  after  discontinuance  in  justice's  court  on  plea  of  title,  2924. 


INDEX.  4443 

[references  are  to  pages.] 
DISCOVERY  AND  INSPECTION, 

distinguished  from  discovery  in  chancery,  1825. 

bill  of  discovery,  1716. 

power  of  court,  1827. 

remedy  distinct  from  production  of  books  or  papers  on  trial  or 

examination  of  party,  1828. 
discretion  of  court,  1829. 

as  dependent  on  parties,  1830,  4145. 
who  may  be  compelled  to  produce,  1831. 
in  actions  against  foreign  corporation,  1832. 
survey  in  actions  relating  to  real  property,  1832,  4145. 
effect  of  papers  produced,  1833. 
books,  documents,  or  other  papers,  1833. 
property  and  chattels,  1S33. 
public  records,  1834. 
copies  of  writings,  1834. 
privileged  communications,  1834. 
incriminating  papers,  1835. 
to  enable  plaintiff  to  frame  his  pleadings,  1835. 

bill  of  particulars,  1836. 
to  enable  defendant  to  frame  his  pleadings,  1836. 
to  prepare  for  hearing  or  trial,  1837,  4145. 
"fishing"  examinations,  1838. 

to  ascertain  title  or  evidence  of  adverse  party,  1839. 
aid  to  expert  or  other  testimony,  1841. 
demand  and  refusal,  1841. 
materiality  of  papers,  1842. 
necessity,  1842,  4145. 
time  for  application,  1844. 
petition  and  order  to  show  cause,  1845,  4145. 
verification  of  petition,  1846. 
contents  of  petition,  1847. 

allegations  as  to  necessity,  1848. 

allegations  as  to  materiality,  1848. 

allegations  as  to  information  sought,  1848. 

allegations  as  to  existence  of  evidence,  1849. 

allegations  as  to  cause  of  action,  1849. 

subscription,  1849. 
proceedings  by  opposing  party  after  service  of  order  to  show  cause, 

1850. 
opposing  affidavits,  1851. 

curing  defects  and  moving  papers,  1851. 
order  for  inspection,  1852. 

directions  as  to  mode  of  discovery,  1852,  4145. 

directions  as  to  subject-matter,  1854. 


4444  INDEX. 

[REFERENCES  are  to  pages.] 
DISCOVERY  AND  INSPECTION— Cont'd. 
directions  as  to  time,  1854. 
directions  as  to  stay  of  proceedings,  1854. 
directions  as  to  penalty  for  failure  to  obey,  1855. 
service,  1S55. 

effect  of  disobedience  to  order,  1856. 
order  for  examination  of  party  before  trial  directing  production  of 

books  and  papers,  1804. 
rigbt  to  compel  production  of  books  and  papers  pending  examina- 
tion of  party  before  trial,  1811. 
right  of  action  by  sheriff  in  aid  of  an  attachment,  1493. 
costs  to  abide  event,  2938. 
in  creditor's  suit,  3383. 

DISCRETION  OF  COURT, 

allowing  amendment  on  trial,  1029. 

granting  leave  to  renew  motion,  642. 

allowance  of  supplemental  pleading,  1052. 

allowing  party  to  intervene,  429,  430. 

terms  on  allowing  amendment,  707. 

order  for  more  specific  bill  of  particulars,  879. 

decision  of  motion  for  bill  of  particulars,  875. 

amount  of  bail,  1334. 

appointment  of  receiver,  1628. 

attachment,  1383. 

consolidation  of  actions,  1695. 

discontinuance,  2104. 

dismissal  of  complaint  for  want  of  prosecution,  2130. 

dissolution  or  modification  of  temporary  injunction,  1596. 

examination  of  party  before  trial,  1778. 

examination  of  witness  outside  of  state,  1738. 

inspection  or  discovery,  1829. 

interpleader,  1868. 

leave  to  sue  as  a  poor  person,  1877. 

order  of  proof,  2223. 

order  of  arrest,  1276. 

order   that  action   abate   unless   continued   within   specified   time, 

2098. 
physical  examination  of  party  before  trial,  1819. 
reopening  case  after  party  has  rested,  2227. 
revival  on  death  of  sole  party,  2085. 

severance  of  action  where  answer  admits  part  of  claim,  1704. 
stay  of  proceedings,  1922. 
striking  out  of  evidence,  2273. 
substitution  of  party,  2077. 


index.  4445 

[references  are  to  pages.] 
DISCRETION  OF  COURT— Cont'd. 

temporary  injunction,  1558. 

appointment  of  receiver  in  supplementary  proceedings,  3350. 

appointment  of  receiver  in  creditor's  suit,  3424. 

amendment  of  judgment,  2812. 

amendment  of  statement  confessing  judgment,  2886. 

case,  settlement  of,  2671. 

costs,  award  of,  2925. 

costs  of  motion,  2935. 

costs  to  creditor  in  supplementary  proceedings,  3341. 

leave  to  issue  execution  after  five  years,  3071. 

leave  to  issue  execution  after  death  of  debtor,  3078. 

mode  of  enforcing  bid  at  judicial  sale,  3239. 

new  trial  on  judge's  minutes,  2720. 

new  trial  because  verdict  against  weight  of  evidence,  2692. 

new  trial  because  damages  excessive  or  inadequate,  2695. 

new  trial  because  of  surprise,  2710. 

new  trial  for  newly  discovered  evidence,  2703. 

notice  to  judgment  debtor  of  examination  of  third  person  in  sup- 
plementary proceedings,  3293. 

opening  default  judgment,  2875. 

order  for  examination  in  supplementary  proceedings,  3289. 

ordering  exceptions  to  be  heard  in  first  instance  by  appellate  di- 
vision, 2722. 

permitting  third  person  to  pay  sheriff,  in  supplementary  proceed- 
ings, 3326,  3327. 

quashing  of  execution,  3187. 

reference,  2567. 

vacation  of  judgment,  2829. 

vacation  of  satisfaction  of  judgment,  2841. 

vacating  judicial  sale,  3230. 

review  on  appeal,  see  "Appeal,"  "Court  of  Appeals,"  "Appellate  Di- 
vision." 

motion  for  reargument  of  appeal,  3837. 

DISMISSAL  (see,  also,  "Taking  Case  from  Jury"), 

of  submission,  37. 

as  affecting  pendency  of  action,  47. 

for  refusal  to  furnish  bill  of  particulars,  880. 

for  failure  of  complaint  to  state  cause  of  action,  1081. 

of  complaint  after  opening  statement  of  counsel,  2210. 

for  failure  to  file  security  for  costs,  1908. 

where  action  is  vexatious,  1912. 

as  dissolving  temporary  injunction,  1603. 

for  refusing  to  obey  order  for  inspection,  1856. 


444C  INDEX. 

[REFERENCES  are  to  pages.] 

DISMISSAL— Cont'd. 

for  failure  of  plaintiff  to  appear  on  postponed  day  of  trial,  2035. 

effect  of  attachment  proceedings,  1528. 

judgment  on  dismissal  as  authorizing  ascertainment  of  damages 
on  undertaking  given  to  procure  a  temporary  injunction,  1606. 

power  of  referee,  2593. 

of  supplementary  proceedings,  3344. 

new  trial  on  judge's  minutes  after  dismissal  of  complaint,  2718. 

power  to  award  costs  on  dismissal  of  action,  2903. 

costs  in  equity  on  dismissal  of  action,  2928. 

additional  allowance  of  costs  where  dismissal  is  for  plaintiff's  fail- 
ure to  appear,  3007. 

I.  Dismissal  for  Failure  of  Plaintiff  to  Proceed. 

what  constitutes  "unreasonable  neglect"  to  proceed,  2125,  4156. 

excuses,  2127,  4156. 
conditions  precedent,  2129. 
waiver  of  right  to  move  to  dismiss,  2129. 
motion,  2129. 

time  to  move,  2130. 

affidavits,  2130. 

discretion  of  court,  2130. 
order  and  judgment,  2130. 

conditions  imposed,  2131. 
appeal,  2131. 
dismissal  for  failure  to  serve  summons  on  part  of  defendants, 

2132. 
addition  to  time  within  which  to  sue  where  dismissal  for  neg- 
lect to  prosecute,  509,  510. 

II.  Of  Appeal. 

dismissal  by  consent,  3838. 

dismissal  on  motion  of  appellant,  3839. 

nature  and  propriety  of  motion  by  respondent,  3840. 

grounds  for  dismissal,  3841. 

failure  to  give  undertaking,  3842. 

failure  to  prosecute  proceedings,  3843. 

omissions  in  the  record,  3843. 

failure  to  make,  serve,  or  file  case,  3844. 

failure  to  substitute  person  as  party  or  attorney,  3844. 

matters  relating  to  the  calendar,  3844. 

frivolousness  of  appeal,  3845. 

want  of  jurisdiction,  3845. 

review  unnecessary  or  ineffectual,  3845. 
waiver  of  right  to  move,  3846. 


index.  444^ 

[references  are  to  pages.] 


DISMISSAL— Cont'd. 


motion,  3846. 

time  for  motion,  3846. 

who  may  move,  3847. 

court  in  which  motion  to  be  made,  3847. 

motion  papers,  3847. 

notice  of  motion,  3848. 
hearing,  3849. 
order,  3849. 

effect  of  dismissal,  3849. 
reinstatement,  3850. 

withdrawal  of  appeal  as  condition  of  right  to  move  to  vacate 
order,  638. 

DISTRESS, 

definition,  359. 

DISTRICT  ATTORNEY, 

prosecutor  in  disbarment  proceedings,  254. 

DIVIDENDS, 

place  of  trial  of  action  to  recover  dividend  on  certificate  in  real 
property  trust,  354. 

DIVORCE  (see,  also,  "Alimony"), 

sitting  of  court  public  in  divorce  suit,  118. 

place  of  trial,  364. 

joinder  of  causes  of  action  for  limited  and  absolute  divorce,  77,  78. 

time  within  which  to  bring  action,  478. 

jurisdiction  of  supreme  court  derived  from  statute,  159. 

requiring  bill  of  particulars,  870. 

amendment  on  trial  to  change  action  for  separation  into  action  for 

absolute  divorce,  1034. 
order  of  arrest,  1280,  1297. 
discontinuance,  2104,  2106. 
abatement  of  action  by  death  of  party,  2067. 
costs  as  discretionary,  2926. 
additional  allowance  of  costs,  3011. 
collection  of  costs  by  contempt  proceedings,  3042. 

DOCKETING, 
of  order,  627. 

of  judgment,  see  "Judgment,"  "Confession  of  Judgment." 
to  suspend  lien  of  judgment  pending  an  appeal,  2803. 

DOCTOR  (see  "Physicians  and  Surgeons"). 


444^  INDEX. 

[references  are  to  pages.] 
DOCUMENTARY  EVIDENCE, 
subpoena  duces  tecum,  1969. 
order  to  produce,  1970. 

who  may  make,  1970. 
effect  of  failure  or  refusal  to  obey  order  or  subpoena,  1971. 
books  and  papers  of  corporation,  1972. 
books  and  papers  in  custody  of  public  officer,  1972. 
remedy  of  party  served  with  order  or  subpoena,  1973. 
effect  of  subpoena  duces  tecum  without  other  subpoena,  1973. 
removal  of  records,  1973. 

DOCUMENTS, 

what  are,  within  Code  provision  permitting  inspection,  1833. 
newly-discovered  documents  as  ground  for  new  trial,  2703. 
inclusion  in  case,  2664. 
fees  for  certified  copy  as  disbursements,  2988. 

DOMICILE  (see,  also,  "Residence"), 

as  distinguished  from  residence,  361,  362. 

DORMANT, 

executions,  3104. 

DOUBLE  COSTS  (see  "Increased  Costs"). 

DOWER, 

place  of  trial,  349. 

time  within  which  action  must  be  brought,  459. 

requiring  bill  of  particulars,  869. 

abatement  of  action  by  death  of  party,  2067. 

trial  by  jury,  2140. 

preference  of  action  on  calendar,  1677. 

security  on  staying  proceedings  after  verdict,  1581. 

receiver,  1625. 

costs  as  matter  of  right,  2910,  2926. 

subject  to  creditor's  suit,  3405. 

right  as  vesting  in  receiver  in  supplementary  proceedings,  3366. 

DRUNKARDS  (see  "Habitual  Drunkards"). 

DUE  DILIGENCE, 

definition,  768. 

DUPLICITY, 

in  pleading,  838. 
DURESS, 

necessity  of  pleading  as  defense,  954. 


INDEX.  4449 

[references  are  to  pages.] 

E. 

EARNINGS, 

supplementary  proceedings  to  reach,  3263. 

ordering  payment  of,  in  supplementary  proceedings,  3331. 

creditor's  suit,  3401. 

EASEMENTS, 

costs  as  of  course  where  easement  involved,  2909. 

EDUCATION  (see  "Schools"). 

EJECTMENT, 

place  of  trial,  349. 

time  within  which  to  sue,  458-460. 

requiring  bill  of  particulars,  869. 

power  to  join  causes  of  action,  64. 

cause  of  action  for  trespass,  as  arising  out  of  same  transaction,  70. 

compelling  disclosure  of  authority  of  attorney,  267. 

abatement  by  death  of  party,  2070. 

discontinuance,  2105. 

interpleader,  1859. 

order  of  arrest,  1281. 

trial  by  jury,  2140. 

security  on  staying  proceeding  after  verdict,  1581. 

who  party  to  be  compelled  to  produce  papers,  1831. 

who  may  move  to  vacate  judgment,  2821. 

notice  to  occupant  of  motion  to  vacate  judgment,  2828. 

admissions  by  default  judgment,  2860. 

costs  as  matter  of  right,  2910. 

basis  of  computing  extra  allowance,  3019. 

execution  after  death  of  defendant,  3073. 

execution  after  twenty  years,  3071. 

contents  of  execution,  3097. 

action  by  execution  purchaser,  3151. 

ELECTION, 

between  causes  of  action,  1084,  4128. 

between  defenses,  1087. 

between  answer  and  demurrer,  1086. 

ELECTION  BETWEEN  REMEDIES, 

definition  and  nature  of  doctrine,  41,  4045. 
inconsistency  of  remedies,  43,  4045. 
acts  constituting  election,  44,  4045. 

N.  Y.  Prac— 279. 


J450  INDEX. 

[references  are  to  pages.] 

ELECTION  BETWEEN  REMEDIES— Cont'd, 
finality  of  election,  45,  4045. 

effect  of  discontinuance  or  amendment,  45. 
power  to  compel  election  on  trial  between  two  causes  of  action, 

1084. 
between  provisional  remedies,  1269. 
supplementary  proceedings,  3257. 
creditor's  suit,  3388. 
action  to  set  aside  assignment,  3436. 

ELECTION  OF  OFFICERS, 

jurisdiction  to  correct  errors  of  county  canvasser,  159. 

judicial  proceedings  on  election  day,  106. 

applications  under  election  law  as  special  proceedings,  16. 

ELEVATED  RAILROADS  (see  "Abutting  Owners"). 

EMBEZZLEMENT, 

body  execution  against  embezzler,  3199. 

EMINENT  DOMAIN, 

attorney's  lien  on  award,  296. 

condemnation  proceedings  as  special  proceedings,  15. 

additional  allowance  of  costs,  3005. 

appeal,  3616,  3641. 

EMPLOYER  AND  EMPLOYEE  (see  "Master  and  Servant"). 

ENROLLMENT  (see,  also,  "Docketing"), 
of  order,  627. 

ENTRY, 

order,  623. 

order  of  reference,  2580. 

order  denying  a  new  trial,  2740. 

judgment,  2781,  and  see  "Judgment." 

amendment  of  judgment,  2814. 

verdict,  2359. 

direction  in  order  to  enter,  620. 

informality  in  entering  judgment  as  cured  by  verdict,  etc.,  703. 

EQUITY, 

court  of  cbancery,  156. 

abolishment  of  distinction  between  actions  at  law  and  in  equity,  18. 

practice  as  to  supplemental  pleadings,  1049. 

set  off  in  equity,  969. 

limitations  in  equity,  439,  440. 


index.  4451 

[references  are  to  pages.] 

EQUITY— Cont'd. 

demand  for  wrong  relief  as  ground  for  demurrer,  1000. 

commencement  of  suits  in  equity,  711. 

amendment  changing  action  to  legal  and  vice  versa,  1034. 

retaining  action  for  complete  relief,  126. 

rule  as  to  joinder  of  cause  of  action,  56,  57. 

right  to  join  legal  and  equitable  causes  of  action,  62. 

necessity  of  pleading  defense  of  remedy  at  law,  957. 

defense  that  plaintiff  has  adequate  remedy  as  demurrable,  1003. 

jurisdiction  of  county  court,  165. 

jury  trial,  2149. 

right  to  attachment  in  equitable  action,  1389. 

costs  as  discretionary,  2925. 

body  execution  in  equitable  suits,  3199. 

ERROR  IN  FACT, 

ground  for  vacating  judgment,  2816. 

time  to  move  to  vacate  judgment  because  of,  2825. 

ESCAPE, 

place  of  trial,  358. 

going  at  large  beyond  limits  of  jail  liberties,  1378. 
from  imprisonment  on  body  execution,  3210. 
new  body  execution  after,  3214. 

new  execution  against  property  after  escape  from  imprisonment 
under  body  execution,  3086. 

ESTATES  (see,  also,  "Real  Property,"  "Curtesy,"  "Dower,"  etc.), 
what  are  subject  to  sale  on  execution,  3137-3139. 

ESTATES  OF  DECEDENTS  (see,  also,  "Executors  and  Adminis- 
trators," "Wills,"  "Heirs,  Devisees  and  Legatees,"  "Surrogate's 
Court"), 

power  of  judge  out  of  court  to  grant  leave  to  issue  execution 
against,  238. 

proceedings  to  enforce  claim  as  special  proceeding,  18. 

proceedings  relating  to  trustee  under  will  or  testamentary  guard- 
ian as  special  proceedings,  16. 

application  to  appoint  successor  to  trustee  as  special  proceeding,  18. 

receiver  of,  1627. 

ESTOPPEL, 

to  assert  attorney's  lien,  305. 

to  question  validity  of  undertaking,  690. 

to  object  to  want  of  stipulation  for  judgment  absolute,  3619. 

request  to  find  as,  2614. 


.nv_,  INDEX. 

[REFERENCES  are  to  pages.] 
EVICTION, 

relief  to  evicted  execution  purchaser,  3151. 

EVIDENCE  (see,  also,  "Burden  of  Proof,"  "Depositions"), 

amendment  on  the  trial  to  conform  pleadings  to,  1032,  2221. 
precluding  giving  of  for  failure  to  furnish  bill  of  particulars,  876, 
880. 
pleading  evidence,  825. 

admissions  in  pleadings  as  dispensing  with,  913. 
limitation  on  evidence  admissible  by  bill  of  particulars,  880. 
use  of  affidavit  as,  551. 

evidence  admissible  under  general  denial,  946. 
kinds  of  evidence,  2214. 

documentary  evidence,  2214. 
real  evidence,  2216. 
comparison  of  handwriting,  2218. 

showing  purpose  for  which  evidence  is  introduced,  2220. 
view,  2220. 

preservation  of  evidence,  2221. 
burden  of  proof,  2221. 

admissibility  of  deposition  in  evidence,  1764,  1727,  1814. 
basing  charge  to  jury  on  belief  from  the  evidence,  2326. 
charging  as  to  preponderance  of,  2331. 
charging  as  to  weight  and  effect,  2317. 
charging  as  to  sufficiency,  2319. 
charging  as  to  failure  of  party  to  produce,  2331. 
discovery  and  inspection  merely  to  search  for  evidence,  1838. 
motion  to  make  pleading  more  definite  to  obtain,  1063. 
giving  undue  prominence  to  in  charge  to  jury,  2322. 
instructions  must  conform  to,  2326. 

objections  to  evidence  taken  outside  the  state  by  deposition,  1755. 
postponement  to  procure,  2024. 

secondary  evidence  after  notice  to  produce  at  trial,  1966. 
summing  up  in  charge  to  jury,  2315. 

use  of  memorandum  to  refresh  memory  of  witness,  2337. 
use  of  deposition  containing  examination  of  party  before  trial  as 

evidence,  1814. 
necessity  for  including  in  case,  2663. 
surprise  as  to,  as  ground  for  new  trial,  2711. 
new  trial  because  of  erroneous  rulings  as  to,  2690. 
verdict  against,  as  ground  for  new  trial,  2692. 
how  set  forth  in  case,  2672. 
to  redeem  from  execution  sale,  3175. 
recitals  in  sheriff's  deed,  3161. 
power  of  referee  to  reject  or  strike  out,  2594,  2595,  2606. 


INDEX.  4453 

[references  are  to  pages.] 
EXAMINATION  OF  PARTY  BEFORE  TRIAL, 

as  special  proceedings,  17. 

power  to  take  deposition,  1775. 

the  person  to  be  examined,  1775. 

granting  of  order  as  a  matter  of  right,  1778. 

necessity  for,  1779,  4141,  4142. 

in  personal  injury  cases,  1782,  4142. 

to  enable  party  to  furnish  bill  of  particulars,  1783. 
rule  where  fiduciary  relation  exists  or  facts  are  peculiarly  within 

knowledge  of  adverse  party,  1783,  4142. 
materiality  of,  1786,  4143. 
grounds  for  refusing,  1786,  4143. 

incriminatory  nature  of  examination,  1786. 
second  examination,  1789. 
effect  of,  1789. 

time  for  application,  1790,  4143. 
to  whom  application  made,  190,  237,  1791,  4143. 
contents  of  affidavit  as  identical  with  bill  of  discovery,  1791. 
contents  of  affidavit  where  action  is  pending,  1791. 

where  no  action  is  pending,  1793. 

allegations  irrespective  of  whether  action  is  pending,  1795. 

effect  of  existence  of  relation  of  trust  between  the  parties,  1795. 
requisites  of  affidavit  generally,  1796. 

residence  and  address  of  applicant's  attorney,  1796. 

name  and  residence  of  parties,  1796. 

statement  as  to  cause  of  action,  1796. 

allegations  of  materiality  and  necessity,  1797. 

existence  of  facts  the  subject  of  the  examination,  1800. 

statement  or  intention  to  use  on  trial,  1800,  4143. 

statements  on  information  and  belief,  1800. 
who  may  make  affidavit,  1802. 
opposing  affidavits,  1802. 
effect  of  affidavits  as  evidence,  1803. 
effect  as  waiver  of  right  to  amend  plea  as  of  course,  1022. 

I.  Order. 

contents,  1803,  4143. 

conditions  imposed,  1804. 

directing  production  of  books  and  papers,  1804,  4143. 
service,  335,  1806,  4144. 
tender  of  witness  fees,  1807. 
order  for  examination  of  prisoner,  1807. 
motion  to  limit  and  define  purpose  of  order,  1807. 
filing,  1807. 


4454 


INDEX. 


[references  are  to  pages.] 

EXAMINATION  OF  PARTY  BEFORE  TRIAL— Cont'd, 
vacation  of  order,  1808. 
punishment  for  disobedience,  1809. 
appealability  of  order,  1809. 

II.  The  Examination. 

proof  of  service  of  order  as  condition,  1810. 

production  of  books  and  papers,  1811. 

place  of  examination,  1811. 

adjournments,  1812. 

stay,  1812. 

punishment  for  disobedience,  1812. 

III.  The  Deposition. 
contents,  1812. 

subscription,  certification,  and  filing,  1813. 

use  as  evidence,  1814,  4144. 

joinder  with  motion  for  discovery  and  inspection,  1845. 

physical  examination  independent  of  oral  examination,  1820. 

EXAMINATION  OF  WITNESSES, 

examination  before  trial,  see  "Examination  of  Party  before  Trial. 

who  may  examine,  2230. 

definiteness  of  questions,  2231. 

repetition  of  questions,  2231. 

frivolous  examination,  2231. 

responsiveness  of  answer,  2231. 

refusal  to  testify,  2232,  4158. 

right  to  refuse  to  testify,  2232. 
leading  questions,  2237. 
interpreters,  2235. 
limiting  number  of  witnesses,  2235. 
recalling  witnesses,  2235. 
direct  examination,  2236,  4158. 

statement  of  evidence  to  be  given,  2237. 

leading  questions,  2237. 

refreshing  memory  by  use  of  memorandum,  2237,  4158. 

examination  of  expert,  2240,  4159. 
cross-examination,  2242. 

right  to  cross-examine,  2242. 

duty  to  produce  witness  for  cross-examination,  2242. 

suspending  cross-examination,  2251. 

leading  questions,  2243. 

reading  from  books  or  papers,  2243. 

scope,  2244,  4159. 

cross-examination  of  expert,  2249. 

re-cross  examination,  2251. 


index.  4455 

[references  are  to  pages.] 
EXAMINATION  OF  WITNESSES— Cont'd, 
re-direct  examination,  2251,  4159. 

leading  questions,  2253. 
reputation  of  witness,  2254. 

evidence  to  sustain  reputation,  2255. 
evidence  of  contradictory  statements,  2256,  4159. 
contradicting  witness  as  to  collateral  matter,  2258,  4160. 
proof  of  hostility,  2261. 
impeaching  one's  own  witness,  2261,  4160. 
proving  case  on  cross-examination,  2225. 
examination  outside  the  state  under  open  commission,  1753. 
Incrimination   of  witness  as  ground   for  refusing  examination  of 

party  before  trial,  1787. 
re-examination  after  postponement  of  trial,  2035. 
on  physical  examination  of  party  before  trial,  1822. 
on  assessment  of  damages,  where  judgment  by  default,  2864. 
scope  in  supplementary  proceedings,  3321. 
of  plaintiff  as  to  payments  where  judgment  taken  by  default,  2858. 

EXCEPTIONS   (see,  also,  "Case,"  "Court  of  Appeals,"  "Appellate  Divi- 
sion"), 
power  of  judge  out  of  court  over,  235. 
to  decision  or  report  where  trial  is  without  a  jury,  2385. 

who  may  except,  2387. 

necessity,  2388. 

mode  of,  2389. 

sufficiency,  2390. 
on  trial,  2368. 

right  to  except,  2368. 

necessity,  2368. 

time,  2369. 

sufficiency,  2369. 

noting  exception,  2370. 

waiver,  2370. 

review,  2371. 
on  trial  of  framed  issues,  2164. 

to  remarks  or  comments  of  judge  during  trial,  2302. 
to  ruling  on  objections  to  summing  up  of  counsel,  2307. 
to  refusal  to  postpone  trial,  2033. 
to  decision  on  trial  of  challenge  to  juror,  2199. 
to  judge's  charge,  2342. 

time,  2344. 

sufficiency,  2344. 

exceptions  without  requests  to  charge,  2346. 
to  rulings  as  to  argument  of  counsel,  2209. 


4450  INDEX. 

[ REFERENCES   ARE   TO   PAGES.] 

EXCEPTIONS— Cont'd. 

to  decision  allowing  or  refusing  non-suit,  2293. 

to  direction  of  verdict  subject  to  opinion  of  court,  2288. 

to  sureties  on  undertaking  given  to  discharge  attachment,  1506. 

to  report  of  referee,  2632. 

time,  2636. 

sufficiency,  2637. 

hearing,  2638. 
to  refusal  of  request  to  find,  2614. 
to  order  for  new  trial,  2745. 
after  interlocutory  judgment,  2725. 
hearing  in  first  instance  by  appellate  division,  2721. 
necessity  for  including  in  case,  2667. 
including  in  judgment  roll,  2789. 
ground  for  new  trial,  2689. 
condition  to  new  trial  on  judge's  minutes,  2720. 

EXCHANGES  (see  "Board  of  Trade"). 

EXECUTION  AGAINST  PROPERTY, 
definition,  3057. 
kinds,  3058. 

condition  precedent  to  body  execution,  3204,  3209. 
execution  against  the  people,  3058. 
disability  of  sheriff  to  act,  3058. 
enforcement  of  judgments  by,  when  proper,  3059. 
on  judgment  by  confession  where  not  all  due,  2889. 
on  judgment  opened  but  allowed  to  stand  as  security,  2877. 
enforcement  of  orders  by  execution,  when  proper,  3060. 
to  collect  costs,  3039. 

to  collect  costs  in  supplementary  proceedings,  3342. 
enforcement  of  order  to  pay  bid  at  judicial  sale,  3241. 
enforcement  of  judgments  by  contempt  proceedings,  3061. 
reference  to  in  sheriff's  deed,  3158. 

fees  for  receiving  and  returning  as  disbursements,  2990. 
issuance  and  return  to  hold  third  person  liable  for  costs,  2948. 
actions  in  aid  of,  3384  et  seq. 

issuance  and  return  as  condition  precedent  to  creditor's  suit,  3389. 
execution  against  attached  property,  1537. 
merger  of  attachment  in  execution,  1530. 

right  of  execution  creditor  to  set  aside  prior  attachment,  1513. 
substitution  of  indemnitors  in  action  against  officer,  1548. 
necessity  to  fix  liability  of  bail,  1369. 
in  hands  of  receiver,  1641. 
condition  precedent  to  supplementary  proceedings,  3275  et  seq. 


INDEX.  4457 

[references  are  to  pages.] 
EXECUTION  AGAINST   PROPERTY— Cont'd. 

I.  Issuance  of  Writ. 

who  may  issue,  307,  3064. 

executor  or  administrator,  3064. 
from  what  court,  3064. 

county  court,  3065. 
conditions  precedent,  3065. 

entry  of  judgment  and  filing  of  judgment  roll,  3066. 

docketing  of  judgment,  3066. 
general  rule  as  to  computation  of  time,  3067. 
substitutes  for  scire  facias,  3067. 
after  ten  years  from  filing  of  judgment  roll,  2801. 
contest  as  to  leave  to  issue  as  special  proceeding,  17. 
within  five  years,  3067. 

on  death  of  judgment  creditor,  3068. 

when  time  begins  to  run,  3068. 
after  five  years,  3068. 

proceedings  to  obtain  leave  of  court,  3070. 
after  death  of  defendant  in  ejectment,  3073. 
after  death  of  a  judgment  debtor,  3073. 

application  to  court  from  which  execution  to  be  issued, 
238,  3076. 

application  to  surrogate's  court,  3079. 
on  judgments  against  executors  or  administrators,  3080. 

time'for  application,  3081. 

notice  of  application,  3081. 

petition,  3082. 

matters  considered  and  decree,  3083. 

requiring  security  of  legatee,  3084. 
simultaneous  writs,  3085. 

simultaneous  executions  against  property  and  person,  3205. 
new  execution,  44,  3086. 

omission  to  return  first  as  precluding  second  execution  as 
of  course,  3186. 

issuance  of  second  execution  as  precluding  creditor's  suit 
based  on  first,  3388. 
substitution  of  copy  for  lost  original,  3088. 
delivery  to  officer,  3088. 
as  releasing  sureties  on  bond  or  undertaking,  683. 

II.  Form  and  Contents. 

teste,  3090. 
subscription,  3090. 
seal,  3091. 


44:»S 


INDEX. 


|  REFEEENCES    A.RE   TO   PAGES.] 

EXECUTION   AGAINST   PROPERTY— Cont'd. 

amendments,  3091. 

to  whom  directed,  3091. 

to  what  counties  issued,  3092. 

description  of  judgment,  3092. 

judgment  of  justice  of  the  peace,  3093. 
statement  of  amount  due,  3094. 

statement  as  to  time  judgment  was  docketed,  3094. 
direction  as  to  property  to  be  taken,  3095. 
direction  as  to  return,  3096. 
execution  for  delivery  of  property,  3097. 
indorsements,  3097. 

name  of  person  issuing  execution,  3098. 

direction  as  to  property  to  be  taken,  3098. 

time  execution  received  by  sheriff,  3099. 
crediting  items  of  costs  disallowed  on  retaxation,  3039. 
omissions  in  alias  writ  as  amendable,  3087. 

III.  Lien  on  Personal  Property. 

when  lien  created,  3100. 

as  against  bona  fide  purchasers,  3102. 
priorities  between  executions,  3102. 

dormant  executions,  3104. 
power  of  attorney  to  stipulate  to  postpone,  261. 
priorities  between  execution  and  attachment,  3105,  1483. 

IV.  Personal  Property  Subject  to  Levy. 

money,  3107. 

choses  in  action,  3107. 

trade-mark,  3108. 

wages,  income  from  trust  funds,  or  profits,  3108. 

interest  of  pledgor,  3112. 

interest  of  lessee,  3113. 

interest  of  licensee,  3113. 

interest  of  chattel  mortgagor,  3113. 

interest  of  mortgagee,  3114. 

joint  property  including  partnership  property,  3114. 

in  hands  of  receiver,  1641. 

V.  Levy  on  Personal  Property. 

time,  3115. 

power  of  attorney  to  direct  as  to,  271. 

sufficiency,  3115. 

extent  of  levy,  3117. 

powers  and  duties  of  officer  making  levy,  3118. 


INDEX.  445& 

[references  are  to  pages.] 
EXECUTION   AGAINST   PROPERTY— Cont'd. 

custody  of  officer,  3118. 

substitution  of  property,  3119. 

abandonment,  3119. 

setting  aside,  3119. 

effect  on  title  to  property,  3120. 

effect  of  levy  as  satisfaction  of  judgment,  3121. 

release  of  partnership  property  levied  on,  3122. 

undertaking,  3122. 
claims  of  third  persons  to  property  levied  on,  3123. 

substitution  of  indemnitors,  3125. 
extent  of  lien,  3125. 
divestiture  of  lien,  3126. 
outstanding    levy    as    precluding    supplementary    proceedings, 

3257. 
levy  on  second  execution  as  precluding  supplementary  proceed- 
ings, 3345. 

VI.  Sale  of  Personal  Property. 

inspection,  before  sale,  of  property  levied  on,  3126. 
authority  to  sell,  3126. 
notice  of  sale,  3127. 

penalty  for  taking  down  or  defacing,  3128. 

effect  of  want  of,  or  defects  in,  notice,  3128. 
time  for  sale,  3128. 

adjournment,  3128. 
who  may  sell,  3129. 
manner  of  conducting  sale,  3129. 

sale  in  parcels,  3129. 

sale  in  view  of  property,  3130. 
who  may  purchase,  3131. 
payment  of  bid,  3131. 
setting  sale  aside,  3131. 
title  and  possession  of  purchaser,  3132. 

effect  of  reversal  of  judgment,  3133. 

action  by  purchaser,  3134. 
application  of  the  proceeds,  3134. 

motion,  3135. 

VII.  Sale  of  Real  Property. 

property  which  may  be  sold,  3136. 
land  fraudulently  conveyed,  3137. 
trust  property,  3138. 
lands  held  adversely,  3138. 


4460  INDEX. 

[references  are  to  pages.] 

EXECUTION   AGAINST   PROPERTY— Cont'd. 

interest  of  person  holding  contract  for  purchase  of  land, 

!i  1 3S. 

expectant  estate,  3138. 

estates'  for  years,  3139. 

estates  at  will,  3139. 

estate  by  curtesy,  3139. 

equity  of  redemption,  3139. 

property  in  custody  of  the  law,  3140. 
levy,  3140. 
notice  of  sale,  3140. 

description  of  property,  3141. 

effect  of  failure  to  give,  or  irregularity  in,  notice,  3141. 
excessive  sales,  3142. 
sale  in  mass,  3143. 
effect  of  sale,  3144. 
setting  sale  aside,  3144. 

inadequacy  of  price,  3145. 
certificate  of  sale,  3146. 
title,  rights,  and  liabilities  of  purchaser,  3147. 

title  acquired,  3149. 

liabilities,  3149. 

obtaining  possession,  3150. 

relief  on  failure  of  title,  3151. 

rights  of  person  in  possession  before  purchaser  becomes 
entitled  to  possession,  3153. 
order  to  prevent  waste,  3153. 

proceedings  to  punish  violation  of  order,  3154. 

punishment,  3154. 

discharge  of  prisoner,  3154. 
contribution,  3155. 
VIII.  Sheriff's  Deed. 

right  to  deed,  3155. 

time,  3155. 
power  to  compel  execution  of  deed,  3156. 

remedy,  3156. 
who  must  execute,  3156- 

deputy  sheriff,  3157. 
to  whom  conveyance  to  be  executed,  3157. 

executor  or  administrator,  3157. 

filing  of  assignments,  3158. 
contents,  3158. 
amendment,  3159. 
cancellation,  3159. 


INDEX.  4461 

[references  are  to  pages.] 

EXECUTION   AGAINST   PROPERTY— Cont'd, 
reformation,  3160. 
effect,  3160. 

estate  conveyed,  3160. 

recitals  as  evidence,  3161. 

IX.  Redemption  of  Real  Property. 
nature  of  Code  provisions,  3162. 

right  as  affected  by  agreements  or  acts  of  others,  3162. 
right  as  affected  by  homestead  act,  3162. 
who  may  redeem,  3162. 

judgment  debtor  or  his  representatives,  3162. 

judgment  creditor  or  mortgagee,  3163. 

redemption  by  person  entitled  to  redeem  only  part,  3166. 
time,  3167. 

agreement  enlarging,  3168. 
amount  necessary  to  redeem,  3168. 

by  judgment  debtor  or  his  representatives,  3168. 

by  judgment  creditor  or  mortgagee,  3169. 

by  creditors  from  redeeming  creditor,  3169. 
certificate  of  satisfaction,  3170. 

contents,  filing,  etc.,  3171. 
payment,  3172. 

short  payment,  3172. 

place  of  payment,  3173. 

to  whom  to  be  made,  3173. 
evidence  to  be  furnished  by  redeeming  judgment  creditor,  3175. 

copy  of  docket  of  judgment,  3176. 

assignments  of  judgment,  3177. 

affidavit  as  to  amount  due,  3177. 
evidence  to  be  furnished  by  redeeming  mortgage  creditor,  3178. 
duty  of  sheriff  as  to  custody  of  redemption  papers,  3179. 
waiver  of  objections,  3179. 
certificate  of  redemption,  3180. 

recording,  3180. 
when  redemption  is  effected  by  creditor,  3181. 
effect,  3181. 

redemption  by  creditor,  3182. 

X.  Return. 

what  constitutes,  3182. 
who  may  make,  3183. 
to  whom  to  be  made,  3183. 
time,  3183. 

return  before  sixty  days,  3184. 


4462  INDEX. 

[references  are  to  pages.] 
EXECUTION   AGAINST   PROPERTY— Cont'd. 

condition  precedent  to  creditor's  suit,  3398. 

compelling  return,  3185. 

amendment,  3185. 

setting  aside  and  cancellation,  3186. 

cancellation  as  authorizing  second  execution,  3086. 
conclusiveness,  31S6. 
effect  of  failure  to  make  or  falsify,  3186. 

liability  of  sheriff,  3187. 
termination  of  lien,  3126. 
entering  satisfaction  of  judgment  after  return,  2S39. 

XI.  Relief  Against  Execution. 
quashing  or  setting  aside,  3187. 

grounds,  3188. 

who  may  move,  3189. 

time  for  motion,  3189. 

notice  of  motion,  3189. 

second  motion  as  renewal  of  old  motion,  640. 
injunction,  3190. 
stay  of  proceedings,  3191. 

discharge  in  bankruptcy,  3191. 
effect  of  vacation  of  judgment,  2831. 

XII.  Wrongful  Levy  or  Sale. 

where  writ  does  not  justify  any  levy  whatever,  3192. 

liability  of  execution  creditor,  3192. 
where  writ  does  not  justify  levy  actually  made,  3193. 

liability  of  execution  creditor,  3194. 

liability  of  third  person,  3195. 

EXECUTION  AGAINST  THE  PERSON, 

power  of  attorney  to  enforce  lien  on  judgment  by  issuing,  307. 
in  what  actions  allowable,  3197. 

as  dependent  on  nature  of  actions,  3197. 

as  dependent  on  issuance  of  order  of  arrest,  3200. 
persons  entitled,  3202. 

judgment  for  costs,  3202,  3040. 
execution  against  guardian  ad  litem,  3203. 
issuance,  3203. 

execution  against  property  as  condition  precedent,  3204. 

simultaneous  executions  against  property  and  person,  3205. 

implied  power  of  attorney  to  issue,  271. 

as  extinguishing  order  of  arrest,  1336. 
contents,  3205. 


INDEX.  4403 

[references  are  to  pages.] 
EXECUTION  AGAINST  THE  PERSON— Cont'd, 
making  the  arrest,  3207. 
effect,  1336,  3207. 

suspension  of  lien  of  judgment,  3207. 

satisfaction  of  judgment,  3208. 
setting  aside,  3208. 

imposing  conditions,  3209. 
custody,  3209. 

escape,  3210. 

defenses  to  action  for  escape,  3211. 
discharge,  3211. 

by  lapse  of  time,  3212. 

by  direction  of  execution  creditor,  3213. 

by  laches  of  execution  creditor,  3213. 

by  order  of  court,  3214. 

implied  power  of  attorney  to,  271. 
successive  writs,  3214. 

after  escape,  3214. 

after  death  of  debtor,  3214. 

after  discharge  of  debtor  after  thirty  days,  3214. 
imprisonment  as  precluding  creditor's  suit  against  debtor,  3393. 
time  in  which  person  imprisoned  can  move  to  vacate  judgment, 

2826. 
necessity  to  fix  liability  for  bail,  1369. 

EXECUTORS  AND  ADMINISTRATORS  (see,  also,  "Wills,"  "Estates  of 
Decedents,"  "Heirs,  Devisees  and  Legatees"), 

jurisdiction  to  compel  accounting,  158. 

jurisdiction  over  foreign,  132,  133. 

attorney's  lien  for  service  rendered  to,  291. 

power  to  join  causes  of  action  on  claims  against,  65. 

counterclaims  in  actions  by,  983. 

counterclaims  in  actions  against,  983. 

right  to  sue  in  their  own  name  alone,  391,  392. 

power  to  revive  claim  barred  by  limitations,  519. 

power  to  make  payment  to  take  case  out  of  limitations,  529. 

time  to  bring  action  against,  to  recover  chattels  or  damages  for 

taking,  481. 
cumulative  remedies  to  enforce  judgment  in  favor  of  deceased,  41. 
cumulative  remedies  for  enforcement  of  decree  against,  41. 
joinder  of  causes  of  action  against  personally  and  in  representative 

capacity,  75,  76. 
exemption  from  arrest,  1307. 
right  to  attach  property  of,  1384. 
security  for  costs,  1891. 


44ti4  INDEX. 

[references  ake  to  pages.] 

EXECUTORS  AND  ADMINISTRATORS— Cont'd. 

discovery  and  inspection  in  actions  by  or  against,  1831. 

preference  on  calendar  where  party,  1G76. 

effect  of  on  death  or  removal  pending  suit  by  or  against,  2079. 

substitution  of  on  death  of  party,  2087. 

power  to  move  to  set  aside  judgment  against  decedent,  2823,  2872. 

power  to  confess  judgment,  2880. 

power  to  take  out  execution,  3064. 

avoiding  transfer  by  decedent  where  estate  is  insolvent,  3432. 

requests  to  find,  on  accounting  of,  2610. 

judgment  againt,  as  lien  on  property  of  decedent,  2796. 

docketing  part  of  judgment  against,  separately,  2791. 

execution  on  judgments  against,  3080. 

leave  to  sue  on  judgment,  2842. 

costs,  in  action  against,  as  matter  of  right,  2917. 

certificate  to  obtain  costs  against,  2958. 

personal  liability  for  costs,  2949,  2953. 

supplementary  proceedings  against,  3271. 

judgment  against  as  condition  to  creditor's  suit,  3394. 

delivery  of  sheriff's  deed  to,  after  execution  sale,  3157. 

right  to  appeal,  3654. 

EXEMPTIONS, 

from  arrest,  see  "Arrest." 

from  levy,  see  "Attachment." 

of  attorneys,  247. 

persons  exempt  from  service  of  summons,  730. 

property  not  subject  to  supplementary  proceeding,  3262  et  seq. 

property  as  reachable  by  creditor's  suit,  3401. 

property  as  vesting  in  supplementary  proceedings,  3364. 

as  preventing  lien  of  judgment  attaching,  2797. 

EXHIBITS, 

as  rendering  pleading  definite  and  certain,  841. 

as  controlling  allegations  in  pleading,  908. 

annexation  to  deposition  taken  outside  the  state,  1756. 

introduction  in  evidence  on  examination  of  party  before  trial,  1810. 

how  printed  in  case,  2673. 

improperly  taking  to  jury  room  as  ground  for  new  trial,  2700. 

EX  PARTE  (see  "Notice  of  Motion,"  "Order"). 

EXPERTS, 

charging  the  jury  as  to  evidence  of,  2321. 
contradicting  as  to  collateral  matter,  2259. 
examination  as  witness,  2240. 


INDEX.  4-1:05 

[references  are  to  pages.] 
EXPERTS— Cont'd. 

cross-examination,  2249. 

limiting  number  of,  2235. 

continuance  because  of  absence  of,  2027. 

change  of  place  of  trial  for  convenience  of,  1936. 

challenge  to  juror  because  acquainted  with,  2197. 

"witness  fees,  1982. 

compensation  as  disbursement,  2984. 

EXTENSION, 
of  time,  692. 

F. 

FACTORS, 

arrest  in  actions  against,  1284. 

FACTS  (see,  also,  "Findings"), 

issues  of  fact,  2137. 
FALSE  IMPRISONMENT, 
place  of  trial,  357. 
time  within  which  to  sue,  482. 
abatement  of  action  on  death  of  party,  2086. 
costs  as  matter  of  right,  2914. 

stipulating  not  to  sue  for,  on  setting  aside  body  execution,  3209. 
FEDERAL  COURTS, 

exclusiveness  of  power  granted  to,  137. 
courts  of  limited  jurisdiction,  100. 
concurrent  jurisdiction,  125  et  seq. 
admiralty  and  maritime  cases,  137. 

what  are  common  law  remedies,  138. 
torts,  139. 
salvage,  140,  4055. 
questions  of  prize,  140. 

enforcement  of  stipulation  given  in  admiralty  proceedings,  140. 
enforcement  of  lien  given  by  state  statute,  140. 
national  banks,  140. 
cases  involving  patents,  140,  4055. 
cases  involving  copyrights,  142,  4055. 
cases  involving  trademarks,  142. 
actions  by  or  against  state,  United  States,  or  foreign  government 

143. 
jurisdiction  over  military  reservations  and  federal  property,  143, 

4056. 
actions  by  or  against  United  States  officers,  144. 
N.  Y.  Prac— 280. 


4466  index. 

[  REFERENCES    ARE   TO   PAGES.] 

FEDERAL  COURTS— Cont'd. 

cases  involving  consuls  or  ambassadors,  144. 

writs  of  habeas  corpus,  145. 

proceedings  in  bankruptcy,  142,  4055. 

pendency  of  action  in  as  matter  in  abatement,  50,  51. 

decisions  of  state  courts  in,  and  vice  versa,  as  binding,  117. 

supplementary  proceedings  on  judgments  of,  3274. 

FEES, 

as  distinguished  from  costs,  2900. 
Code  provisions,  3046. 
fees  of  referee,  3047. 

agreement  for  more  than  statutory  rate,  3048. 

two  actions  tried  on  same  day  or  tried  together,  3048. 

for  what  time  allowed,  3048. 

lien  and  enforcement,  3049. 

forfeiture  of  fees,  3050. 
taxation  of  fees  of  county  clerk  or  sheriff,  3050. 
mode  of  collecting  sheriff's  fees,  3051. 
of  witness,  1982. 

payment  on  service  of  subpoena,  1979. 
payment  of  sheriff's  fees  as  condition  precedent  to  discharging  an 

attachment,  1510. 
tender  of  witness  fees  on  service  of  order  for  examination  of  party 
before  trial,  1807. 

FEIGNED  ISSUES, 
abolished,  2159. 
new  trial,  2736. 
necessity  of  case  on  motion  for  new  trial,  2656. 

FELONIES, 

conviction  as  ground  for  disbarment  of  attorney,  252. 

FEMALES  (see,  also,  "Married  Women"), 

disabilities  as  extending  time  to  sue,  511,  512. 

liability  for  contempt,  341. 

body  execution,  3302. 

arrest  in  civil  action,  1305. 

exemption  of  property,  1416. 

^examination  before  trial,  1822. 

FIDELITY  COMPANIES, 

right  to  execute  bond  or  undertaking,  675. 

right  to  be  discharged  from  liability  on  bond  or  undertaking,  686. 


index.  44C7 

[references  are  to  pages.] 
FIDUCIARY  CAPACITY, 

order  for  arrest  in  actions  against  person  in,  1284. 

as  affecting  granting  of  order  for  discovery  or  inspection,  1829 

examination  of  party  before  trial  where  relation  exists,  1783. 

TILING, 

writs  and  process  in  general,  119. 

papers  in  general,  650. 

bond  or  undertaking,  682. 

motion  papers,  577. 

decision  on  demurrer,  1014. 

submission  of  controversy,  36. 

orders  and  papers  allowing  substituted  service  of  summons,  756. 

papers  for  publication  of  summons,  776. 

affidavit  for  attachment,  1453. 

attachment  bond,  1457. 

affidavit  on  which  an  injunction  is  granted,  1576. 

bond  of  guardian  ad  litem,  2047. 

notice  of  appointment  of  receiver,  1637. 

deposition  of  party  taken  before  trial,  1813. 

order  for  examination  of  party  before  trial,  1807. 

papers  used  on  application  to  obtain  order  of  arrest,  1331. 

receiver's  bond,  1635. 

on  change  of  place  of  trial,  1964. 

undertaking  given  to  discharge  attachment,  1507. 

affidavits  and  order  to  appear  in  supplementary  proceedings,  3296. 

appointment  of  receiver  in  supplementary  proceedings,  3354,  3360. 

assessment  of  damages  where  judgment  by  default,  2855. 

assignment  of  judgment,  2832. 

assignments  under  which  deed  on  execution  sale  is  claimed,  3158. 

case  and  exceptions,  2675. 

certificate  of  execution  sale,  3147. 

certificate  of  satisfaction  by  redeeming  judgment  creditor,  3171. 

examination  in  supplementary  proceedings,  3325. 

judgment,  as  entry,  2781. 

judgment  roll,  2786. 

notice,  to  permit  execution,  after  ten  years,  2801. 

notice  of  ownership  of  judgment,  2832. 

report  of  referee,  2625  et  seq. 

statement  of  requests  to  find,  2613. 

transcript  of  docket  of  judgment,  2793. 

new  trial  for  failure  to  file  decision,  2714. 

undertaking  to  stay  proceedings  pending  appeal,  3764. 

return  in  court  of  appeals,  3794. 

return  in  appellate  division,  3803. 

briefs,  3809,  3811. 


4468  INDEX. 

I  INFERENCES    ARE    TO    PAGES.] 

FINDINGS  (see,  also,  "Requests  to  Find"), 
of  fact,  in  report  of  referee,  2617. 
of  law,  in  report  of  referee,  2619. 
in  decision,  2379. 
sufficiency  of  exceptions  to,  2391. 
necessity  for  findings  of  fact  in  decision  on  demurrer,  1014. 

FINES  (see,  also,  "Penalties,"  "Forfeitures"), 
power  of  county  court  to  remit,  189. 
in  contempt  proceedings,  340. 
arrest  in  action  to  recover,  1279. 
body  execution  in  action  to  recover,  3197. 

FIRMS  (see  "Partnerships"). 

FIRST  JUDICIAL  DISTRICT, 

power  of  judge  out  of  court,  238. 

court  or  judge  before  whom  to  make  motion,  600. 

caption  of  order,  619. 

signature  of  order,  619. 

place  for  making  motion  in,  596. 

power  to  make  motion  before  court  or  judge  out  of  court,  596. 

who  may  grant  order  of  arrest,  1315. 

FISCAL  OFFICER, 
who  is,  2939. 

FISH  AND  GAME  LAWS, 

place  of  trial  of  actions  to  recover  penalty  for  violation  of,  356. 
change  of  place  of  trial  of  prosecution  for  violation  of,  1928. 
power  to  join  causes  of  action  for  penalties  incurred  under,  70. 

FOLIOING, 

affidavit,  536. 

pleadings,  821. 

waiver  of  failure  to  number  pleading  by  failure  to  return,  1093. 

failure  to  obey  order  not  properly  folioed  as  contempt,  339. 

FORECLOSURE, 

necessity  that  causes  joined  in  complaint  affect  all  parties,  73,  74. 

suits  as  arising  from  same  transaction,  68. 

sale  on  Sunday,  104. 

jurisdiction  where  lands  lie  in  another  state,  128. 

bar  of  action  on  debt  by  limitations  as  precluding,  451,  452. 

computation  of  time  of  publication  of  notice,  697. 

place  of  trial,  349,  350. 


index.  4469 

[references  are  to  pages.] 

FORECLOS  URE— Cont'd. 

judgment  as  interlocutory,  2753. 

entry  of  judgment  as  precluding  execution  sale,  3126. 

judgment  for  deficiency  on  default,  2763. 

costs  as  matter  of  right,  2919,  2926,  2929. 

additional  allowance,  2995. 

additional  allowance  of  costs  as  discretionary,  3002,  3006. 

basis  of  computation,  3008. 

amount  of,  3019. 
referee's  fees  for  selling,  3247. 
title  of  receiver  to  rents,  3368. 
appointment  of  receiver  to  sue  to  redeem,  3350. 
abatement  by  death  of  party,  2070. 
appointment  of  receiver,  1624. 

attachment  of  property  in  action  to  foreclose,  1389. 
consolidation  of  actions,  1694. 

necessity  of  notice  of  appointment  of  receiver,  1631. 
severance  of  action  where  answer  admits  part  of  claim,  1704. 
stay  until  conclusion  of  condemnation  proceedings,  1919. 
trial  by  jury,  2150. 

FOREIGN  CORPORATIONS, 

definition,  1394. 

mode  of  serving  summons  on,  744. 

residence  as  determining  place  of  trial,  363. 

jurisdiction  of  actions  by  and  against,  134,  135,  4054. 

right  to  set  up  statute  of  limitations,  454. 

security  for  costs,  1885,  1887. 

discovery  and  inspection  of  books  and  papers  of,  1832. 

right  to  order  of  arrest,  1276,  note. 

what  law  governs  abatement  of  actions,  2075. 

default  judgment  in  actions  against,  2849. 

proof,  2858. 
supplementary  proceedings  against,  3259. 
attachment  of  property  of,  1383,  1394,  1448. 
attachment  of  stock,  1412. 

FOREIGN  GOVERNMENT, 

jurisdiction  of  action  by  or  against,  143. 
security  for  costs,  1885. 

FOREIGN  JUDGMENTS, 

arrest  in  actions  on,  1299. 

leave  to  sue  on,  2843. 

to  support  creditor's  suit,  3394. 


-t-tTO  INDEX. 

[REFERENCES  are  to  pages.] 
FOREIGN  JURY, 
motion  for,  2059. 

FOREIGN  STATUTES, 

definiteness  and  certainty  required  in  pleading,  849. 

FORFEITURES  (see,  also,  "Fines,"  "Penalties"), 
power  of  county  court  to  remit,  187. 
indorsement  on  summons  in  penal  actions,  722. 
time  within  which  to  bring  action  for,  479,  483. 
place  of  trial  of  action  to  recover,  355. 
fees  of  referee,  3050. 

FORMA  PAUPERIS  (see  "Poor  Persons"). 

FORMER  ADJUDICATION, 

pleading  by  supplemental  answer,  1054,  1055. 
non-suit  as  bar,  2301. 
directed  verdict  as  bar,  2301. 
discontinuance  of  action  as  bar,  2123. 

FORMS  OF  ACTION, 

abolishment  by  Code,  18,  26. 

power  to  amend  so  as  to  change  form,  1027,  1029,  1033. 

change  from  legal  to  equitable  by  order  of  interpleader,  1869. 

FRANCHISE, 

value  of  as  basis  of  computing  additional  allowance,  3015. 

FRAUD  (see,  also,  "Statute  of  Frauds"), 

allegation  in  pleading  as  conclusion  of  law,  828. 

pleading  evidence,  826. 

necessity  of  pleading  as  defense,  954. 

allegations  of  as  changing  action  from  ex  contractu  to  ex  delicto, 
30,  31. 

time  within  which  to  sue,  476. 

procuring  signature  of  surety  by,  as  defense  to  action  on  undertak- 
ing, 689. 

joinder  with  cause  of  action  for  breach  of  warranty,  69,  72. 

successive  actions,  55. 

election  between  remedies,  43. 

effect  of  service  of  summons  where  procured  by  fraud,  736. 

time  when  cause  of  action  based  on  fraud  accrues,  495,  496. 

action  to  recover  money  obtained  by,  as  identical  with  action  to  re- 
cover for  breach  of  contract,  48. 


index.  4471 

[refebexces  aee  to  pages.] 

FRAUD— Cont'd. 

difference  between  actual  and  constructive  fraud.  1399. 
abatement  of  action  by  death,  2071. 
arrest  in  actions  on  contract  based  on  fraud,  1288. 
right  to  order  of  arrest  because  of,  1282. 
disposition  of  property  as  ground  of  attachment,  1398. 
departure  from  or  concealment  within  state  as  ground  of  attach- 
ment, 1397. 
affidavit  to  obtain  attachment  on  ground  of  fraud,  1449. 
ground  for  suppressing  deposition,  1762. 

locality  as  affecting  jurisdiction  to  grant  order  of  arrest,  1275. 
ground  for  vacating  judgment,  2818. 
ground  for  opening  default  judgment,  2870. 
ground  for  vacating  judgment  by  confession,  2890. 
ground  for  setting  aside  judicial  sale,  3228. 
relieving  purchaser  from  bid  at  judicial  sale,  3237. 
by  execution,  3199. 
averments  as  to  in  complaint  in  creditor's  suit,  3409. 

FRAUDULENT  CONVEYANCES  (see,  also,  "Creditor's  Suit"), 

jurisdiction  to  set  aside  conveyance  of  land  without  the  state,  129. 

whether  one  or  more  causes  of  action  is  stated,  59,  60. 

right  of  one  to  sue  in  behalf  of  all  to  set  aside,  416. 

place  of  trial  of  action  to  set  aside,  352. 

actions  to  set  aside  in  aid  of  an  attachment,  1493. 

temporary  injunction  to  prevent,  1568. 

arrest  in  action  on  contract  where  fraudulent  conveyance,  1292. 

lien  of  judgment  on,  2798. 

sale  on  execution,  3137. 

enforcement  of  judgment  setting  aside  after  death  of  defendant, 

3075. 
title  of  receiver  in  supplementary  proceedings  to,  3364. 
action  by  receiver  in  supplementary  proceedings  to  set  aside,  3369. 
appointment  of  receiver  to  sue  to  set  aside,  3352. 
basis  of  computing  extra  allowance  in  action  to  set  aside,  3016. 

FREEHOLDER. 

definition,  673,  1360. 

FRIVOLOUS  PLEADINGS, 

irrelevancy  as  distinguished  from  frivolousness,  834. 

remedy,  1070,  4127. 

definition  and  nature,  1070,  4127. 

denials,  1071,  4127. 

counterclaim  and  reply,  1072. 


4472  index. 

[REFERENCES  are  to  pages.] 
FRIVOLOUS  PLEADINGS— Cont'd, 
frivolous  demurrer,  1072,  4127. 
motion  and  order,  1073,  4127. 
judgment  on  as  final,  2753. 
additional  allowance  of  costs  where  judgment  rendered  on,  3007. 

a. 

GAME  (see  "Pish  and  Game  Laws"). 

GARNISHMENT  (see,  also,  "Attachment"), 

wages,  debts,  income  from  trust  funds,  etc.,  3108. 

GENERAL  RULES  OF  PRACTICE, 

rules  cited,  see  table  in  front  of  volume. 

GENERAL  TERM  (see,  also,  "Appellate  Division"), 
derivation  of  name,  165. 

GEOGRAPHICAL  FACTS, 
necessity  of  pleading,  831. 

GOOD  CHARACTER  (see  "Examination  of  Witnesses"). 

GOODS  SOLD  AND  DELIVERED, 

reference  in  action  for,  2566. 

sufficiency  of  statement  for  confession  of  judgment,  2883. 

GOVERNOR, 

power  to  change  place  for  holding  court,  112,  113. 

GRAND  JURY, 

refusal  to  testify  before  as  civil  contempt,  320. 
communicating  with  as  criminal  contempt,  321. 

GRASS, 

as  subject  to  execution,  3106. 
GUARDIAN, 

jurisdiction  of  supreme  court  to  compel  accounting,  158. 

order  of  arrest  in  action  against,  1285. 

power  to  purchase  at  judicial  sale,  3224. 

GUARDIAN  AD  LITEM, 
I.  General  Rules. 

who  may  appoint,  2041. 
who  may  be  appointed,  2042. 

competency  in  general,  2042. 


INDEX.  4473 

[references  are  to  pages.] 

GUARDIAN  AD  LITEM— Cont'd. 

actual  person,  2043. 

persons  having  adverse  interests,  2043. 

persons  nominated  by  the  adverse  party,  2043. 

person  financially  responsible,  2043. 

person  connected  in  business  with  counsel  of  adverse  party, 
2043. 

clerk  of  court,  2044. 

consent  of  person  appointed,  2044. 

infant,  2044. 

nonresident,  2044. 

committee  of  habitual  drunkard  or  lunatic,  2044. 
moving  papers,  2045. 
security,  2045. 

in  partition  suit,  2046. 

persons  who  must  give,  2046. 

amount  of  bond,  2046. 

effect  of  omission  to  file  bond,  2047. 

obligees  in  bond,  2047. 

one  or  several  bonds,  2047. 

time  for  execution  of  bond,  2047. 

effect  of  refusal  to  give,  2047. 
order,  2048. 

conveyances  by  guardian,  2049. 
compensation,  2049. 
representative  capacity,  2051. 

purchase  of  ward's  property  by  guardian  ad  litem,  2052. 
removal  of  guardian,  2052. 
financial  condition  as  affecting  right  of  infant  to  sue  as  poor 

person,  1874. 
body  execution  against,  3203. 
liability  for  costs,  2960. 
amount  of  costs  for  appointing,  2964. 
extra  allowance  of  costs  to,  3001. 

amount  of,  3020. 
power  to  purchase  at  judicial  sale,  3224. 

II.  For  plaintiff. 

application,  89,  4052. 

form  of  petition,  90. 

affidavit  of  proposed  guardian,  91. 
time  for  appointment,  91. 
pleadings  and  proof  of  appointment,  91. 
manner  of  raising  objection,  92. 

waiver  of  objections,  92. 


4474  INDEX. 

[bkfkrences  AKE  to  pages.] 
GUARDIAN   AD   LITEM— Cont'd, 
liability  for  costs,  92. 
effect  of  failure  to  appoint,  93,  4052. 
power  of  county  judge  to  appoint,  190. 
appointment  as  curing  failure  to  personally  serve  an  infant, 

735. 
appearance  as  curing  defects  in  service  of  summons,  815. 

III.  For  Defendant. 

where  incapacitated  by  age  or  by  being  deaf  and  dumb,  2037. 
for  insane  defendant,  2037. 

where  defendant  has  not  been  judicially  declared  insane, 
2037. 

who  may  petition,  203S. 
for  infant  defendant,  2038,  4154. 

for  absent  infant  defendant,  2039,  4154. 

appointment  as  dependent  on  service  of  process,  2039. 

liability  for  costs,  2041. 

effect  of  failure  to  appoint,  2041. 

H. 

HABEAS  CORPUS, 

power  of  judge  out  of  court,  236. 

jurisdiction  of  supreme  court,  158. 

jurisdiction  where  person  detained  under  federal  laws,  145. 

issuance  of  writ  on  Sunday,  104. 

power  of  county  judge  to  issue  writ,  191. 

HABITUAL  DRUNKARDS, 

jurisdiction  of  supreme  court,  159. 

interference  with  control  of  committee  as  civil  contempt,  329. 
manner  of  serving  summons  on  habitual  drunkards,  738. 
guardian  ad  litem,  2044. 

compelling  committee  to  give  security  for  costs,  1895. 
power  of  committtee  to  move  to  vacate  judgment  by  confession, 
2890. 

HANDWRITING, 

comparison  of,  2218. 

HARMLESS  ERROR, 

remarks  of  counsel  in  summing  up,  2307. 
depriving  party  of  right  to  open  and  close,  2207. 
improper  statements  in  opening  speech  to  jury,  2209. 
rulings  on  challenges  to  jurors,  2200. 


index.  4475 

[REFERENCES    AIIE    TO    PAGES.] 

HARMLESS  ERROR— Cont'd, 
rulings  on  evidence,  3861. 
charge  to  jury,  3863. 
findings,  3864. 

HEIRS,  LEGATEES  AND  DEVISEES    (see,  also,  "Executors  and  Ad- 
ministrators," "Wills,"  "Estates  of  Decedents"), 
jurisdiction  of  courts  over  lands  in  another  state,  129. 
allegation  of  heirship  in  pleading  as  conclusion  of  law,  828. 
six  years  limitation  of  actions  against  for  debts  of  testator,  475. 
right  of  to  set  up  statute  of  limitations,  454. 
six  years  as  time  within  which  to  sue  for  legacy,  472. 
right  to  sue  on  behalf  of  himself  and  others,  416. 
when  action  by  against  representatives  of  estate  accrues,  499. 
mode  of  levying  on  right  to  sue,  1468. 
exemption  from  arrest,  1307. 
substitution  of  on  death  of  party,  2087. 
costs  as  matter  of  right  in  actions  against,  2915. 
power  to  move  to  vacate  judgment  against  decedent,  2823. 
legacy  as  subject  to  creditor's  suit,  3405. 
interest  of  next  of  kin  as  subject  to  creditor's  suit,  3405. 
necessary  defendants  in  creditor's  suit,  3417. 

equitable  interest  of,  as  vesting  in  receiver  in  supplementary  pro- 
ceedings, 3365. 
HIGHWAYS, 

proceedings  on  appeal  as  special  proceedings,  16. 

place  of  trial  of  action  against  commissioners  for  neglect,  358. 

HISTORICAL  FACTS, 

necessity  of  pleading,  831. 

HOLIDAY  (see,  also,  "Sunday"), 

transaction  of  business  on  holiday,  105. 

service  of  summons  on  holidays,  733. 

common  law  as  rule  as  to  judicial  proceedings,  102. 

service  of  papers  on  holidays,  663. 

exclusion  in  computing  time,  695. 

judicial  sales  on,  3221. 

HOMESTEAD, 

exemption,  1425. 

HOSTILITY, 

of  witness,  2261. 

HOTELS  (see  "Innkeepers"). 


447(5  INDEX. 

[references  are  to  pages.] 
HOUSEHOLDER, 

definition,  673,  1360,  1419. 

HUSBAND  AND  WIPE  (see,  also,  "Alienation  of  Affections,"  "Divorce," 
"Alimony,"  "Married  Women,"  "Criminal  Conversation"), 
name  in  title  of  pleading,  919. 

right  of  husband  to  be  surety  for  his  wife  and  vice  versa,  674. 
arrest  of  one  for  act  of  other,  1304. 
abatement  of  action  by  husband  for  injuries  to  wife,  2068. 

HYPOTHETICAL  QUESTIONS, 

to  experts,  2240. 

HYPOTHETICAL  STATEMENTS, 

in  pleadings,  845. 
hypothetical  denials,  959,  4108. 
ground  of  demurrer,  1003. 

I. 
IDIOTS  (see  "Lunatics"). 

IGNORANCE  (see,  also,  "Knowledge"), 

as  preventing  operation  of  statute  of  limitations,  494-496. 
ground  for  setting  aside  judicial  sale,  3227  et  seq. 

ILLNESS  (see  "Postponement,"  "Default  Judgments"), 
of  party  or  attorney  as  ground  for  continuance,  2025. 
excuse  for  failure  to  obey  subpoena,  1980. 

IMPEACHMENT, 

court  for  trial  of  impeachment,  213. 

newly-discovered  evidence  to  impeach  witness  as  ground  for  new 

trial,  2707. 
of  adverse  witness,  2254. 
of  one's  own  witness,  2261. 
of  testimony  taken  by  deposition,  1769. 

IMPLICATIONS, 

pleading  facts  necessarily  implied,  826. 

IMPLIED  CONTRACTS  (see,  also,  "Money  Loaned,"  "Money  Had  and 
Received"), 
definition,  1391. 

IMPRISONMENT   (see,  also,  "Arrest,"  "Convicts,"  "Execution  Against 
the  Person"), 

power  of  attorney  to  authorize  sheriff  to  discharge,  261. 
personal  disability  as  extending  time  to  sue,  465. 


INDEX.  4477 

[references  are  to  pages.] 

IMPRISONMENT— Cont'd. 

service  of  summons  on  person  in  custody,  733. 
power  of  judge  out  of  court  to  discharge  imprisoned  debtor,  236. 
security  for  costs  of  person  sentenced  to  state  prison,  1890. 
habeas  corpus  to  bring  up  prisoner  to  testify,  1985. 

IMPROVEMENTS, 

payment  for,  on  setting  aside  judicial  sale,  3232. 
rights  of  purchaser  pending  creditor's  suit,  3418. 

INADVERTENCE, 

ground  for  vacating  judgment,  2820. 
time  for  motion,  2826. 

INCOME  (see  "Execution  Against  Property"). 

INCOMPETENTS    (see  "Lunatics,"   "Drunkards"). 

INCONSISTENCY, 

of  remedies,  see  "Election  between  Remedies." 

in  allegations  in  pleadings,  844. 

in  reply,  1089. 

right  to  set  forth  inconsistent  grounds  of  demurrer,  1006. 

prayer  in  complaint  for  inconsistent  relief,  928. 

construction  where  allegations  in  different  counts  of  pleading  are 

inconsistent,  908. 
striking  out  reply  because  inconsistent  with  complaint,  1089. 
right  to  plead  inconsistent  grounds  of  defense,  964. 
necessity  that  causes  of  action  joined  in  complaint  be  consistent,  71.. 
judge's  charge,  2325. 
between  general  verdict  and  special  findings,  2356. 

INCREASED   COSTS, 

when  defendant  entitled  to,  2990. 

who  are  officers,  2992. 

nonfeasance  and  misfeasance,  2992. 

allowance  in  interlocutory  proceedings,  2993. 

waiver  of  right,  2993. 

proceedings  to  obtain,  2993. 
actions  in  which  demandable,  2994. 
double  damages  as  carrying  double  costs,  2993. 
increased  disbursements,  2994. 
treble  costs,  2994. 

INCRIMINATING  QUESTIONS, 
exemption  of  witness,  2232. 

examination  before  trial,  1787. 

in  supplementary  proceedings,  3223. 


H7s  INDEX. 

[references  akk  to  pages.] 

INDEBTEDNESS, 

allegation  in  pleading  as  conclusion  of  law,  828. 

INDEFINITENESS  (see  "Definiteness") . 

INDEMNITY, 

right  of  sheriff  to  demand  before  making  levy,  1472. 
substitution  of  indemnitors  in  action  against  officer,  1548. 
against  claim  of  third  person  to  property  levied  on,  3124. 

INDEX, 

necessity  of  indexing  case,  2663,  3803. 

INDORSEMENT, 

of  writs  and  process  in  general,  119. 
of  papers  in  general,  649. 
of  pleadings,  821. 
of  summons  in  penal  actions,  722. 
effect  of  on  notice  of  appearance,  809. 
on  bail,  1361. 

of  undertaking  to  obtain  order  of  arrest,  1328. 
on  order  granting  motion  for  arrest,  1335. 
on  proposed  requests  to  find,  2613. 
on  execution  against  property,  3097. 

on  execution  on  judgment  by  confession  where  not  all  due,  2889. 
body  execution,  3206. 
as  equivalent  to  subscription,  3090. 
■as  equivalent  to  signature  of  judgment,  2782. 
time  of  filing  judgment  roll,  2786. 

INFANT  (see,  also,  "Guardian,"  "Guardian  ad  Litem"), 
name  in  title  of  pleading,  919. 
jurisdiction  of  supreme  court  over,  159. 
manner  of  serving  summons  on,  738. 
substituted  service  of  summons  on,  753. 

service  of  summons  by  publication  on  non-resident  infant,  762. 
sufficiency   of  affidavit   to  obtain  order  for  substituted   service  of 

summons,  753. 
disability  as  extending  time  to  sue,  465,  509. 
exemption  from  arrest,  1307. 
right  to  attach  property  of,  1384. 
security  for  costs,  1889. 
right  to  sue  as  poor  persons,  1873. 
guardian  ad  litem  for  infant  defendant,  2038. 
power  to  act  as  guardian  ad  litem,  2044. 
preference  on  calendar  where  party  is  an  infant,  1676. 


index.  4479 

[references  are  to  pages.] 
INFANT— Cont'd. 

default  judgment  against,  2849. 
supplementary  proceedings  against,  3259. 
setting  aside  judicial  sale  of  property  of,  3227. 
time  to  move  to  vacate  judgment,  2826. 
opening  default  judgment  against,  2870. 

INFORMATION  AND  BELIEF, 

averments  in  pleadings,  846. 

sufficiency  of  denials  in  answer  on  information  and  belief,  952. 
sufficiency  of  statements  in  affidavits,  541-543. 

sufficiency  to  obtain  order  allowing  service  of  summons  by  publi- 
cation, 766. 
affidavit  to  postpone  trial,  2029. 
affidavit  to  change  place  of  trial,  1952. 
affidavit  on  application  for  temporary  injunction,  1574. 
affidavit  to  obtain  examination  of  party  before  trial,  1800. 
affidavit  to  obtain  order  of  arrest,  1320. 
affidavit  to  obtain  attachment,  1434. 
petition  for  discovery  and  inspection,  1846. 

INITIALS, 

use  in  title  of  pleading,  919. 

INJUNCTION    (see,  also,  "Stay  of  Proceedings,"   "Temporary  Injunc- 
tion"), 

abatement  of  action  by  death  of  party,  2069. 

trial  by  jury,  2141,  2142,  2151. 

in  supplementary  proceedings,  3304. 

in  creditor's  suit,  3421. 

as  staying  time  in  which  judgment  is  a  lien,  2802. 

against  proceedings  on  an  execution,  3190. 

basis  of  computing  additional  allowance  of  costs,  3012. 

amount  of  costs  for  procuring,  2964. 

jurisdiction  to  enjoin  foreign  corporation,  128. 

jurisdiction  to  enjoin  infringement  of  patent,  140,  141. 

cause  of  action  for  penalty  as  inconsistent  with  one  for  injunction 
against  offense,  72. 

cause  of  action  to  enjoin  breach  of  covenant  in  lease  and  for  for- 
feiture of  lease  as  inconsistent,  72. 

place  of  trial  of  action  to  enjoin  erection,  352. 

INJURIES  TO  PERSON  (see  "Personal  Injuries"). 
INJURIES  TO  PROPERTY, 

definition,  1392. 

right  to  attach  property  in  action  for  damages,  1392. 


4  Is;  i  INDEX. 

[references  are  to  pages.] 
INJURIES  TO  PROPERTY— Cont'd. 

time  within  which  to  hring  action,  475. 
pleading  mitigating  circumstances,  963. 
power  to  join  causes  of  action,  64. 

INNKEEPERS, 

necessity  of  demand  before  suing  innkeeper,  81. 
action  ex  contractu  or  ex  delicto,  32. 

INQUESTS, 

on  failure  to  appear  on  day  set  for  trial,  2170. 

opening  default,  2171. 
on  failure  to  verify  answer,  or  file  affidavit  of  merits,  2173. 

setting  aside,  2175. 
taking  inquest  out  of  order  on  calendar,  1672. 
setting  aside  where  taken  on  denial  to  postpone  trial,  2032. 
assessment  of  damages  under  writ  of  inquiry,  2864. 

INQUISITIONS, 

trying  claim  of  third  person  to  property  attached,  1485. 

INSANE  PERSONS    (see  "Lunatics"). 

INSOLVENCY    (see,  also,  "Bankruptcy"), 

power  of  county  judge  to  entertain  application  for  discharge,  189. 

ground  for  attachment,  1394. 

excuse  for  failure  to  obey  subpoena,  1981. 

of  defendant  as  discharging  bail,  1368. 

discharge  of  defendant  as  exonerating  bail,  1364. 

creditor's  suit  against  insolvent  estate,  3432. 

averments  as  to  in  complaint  in  creditor's  suit,  3409. 

INSPECTION   (see,  also,  "Discovery,"  "View"), 

of  property  to  be  sold  on  execution,  3126. 

breaking  open  and  examining  parts  of  books  sealed,  where  inspec- 
tion was  permitted  of  part,  as  civil  contempt,  326. 

service  of  order  before  punishment  for  failure  to  comply  with  order, 
335. 

INSTALMENTS, 

successive  actions  for  instalments,  55. 

INSTRUCTIONS  (see  "Charge  to  Jury"). 

INSURANCE, 

right  of  trustee  of  express  trust  to  sue  alone  on  policy,  391. 

place  of  trial  of  action  against  agents  to  recover  penalty,  355,  356. 

sufficiency  of  pleading  cause  of  action  founded  on  policy,  854. 


INDEX.  4481 

[references  are  to  pages.] 

INSURANCE— Cont'd. 

mode  of  serving  summons  on  foreign  insurance  company,  746. 

who  may  sue  on  policy,  37G. 

consolidation  of  actions  on  policies,  1694. 

interpleader  in  actions  on  policy,  1864. 

interest  of  insured  as  subject  to  attachment,  1408. 

insurance  money  as  exempt,  1424. 

mode  of  attaching  policy,  1466. 

preference  on  calendar  of  actions  on  policies,  1678. 

policy  as  vesting  in  receiver  in  supplementary  proceedings,  3364. 

rights  in  policies  as  subject  to  creditor's  suit,  3406. 

recovery,  by  receiver  in  supplementary  proceedings,  of  premiums 

paid  by  debtor,  3368,  3369. 
basis  for  computing  extra  allowance  in  action  on  policy,  3018. 

INTENTION, 

as  controlling  construction  of  pleading,  905. 

INTEREST  (see,  also,  "Usury"), 

affecting  amount  in  controversy,  125. 
.    recovery  of  simple  interest  as  precluding  subsequent  suit  for  com- 
pound interest,  54. 
including  in  tender,  2009. 
liability  of  receiver  for,  1644. 
effect  of  tender  of  principal,  2005. 
adding  to  verdict,  2363,  2366. 
on  judgment,  2767. 

computation  of  before  entry  of  judgment,  2783. 
computation  of  amount  of  recovery,  2919. 

INTERLOCUTORY  JUDGMENTS, 

as  distinguished  from  final,  2752,  3610,  3752. 

in  creditor's  suit,  3429. 

hearing  of  exceptions  by  appellate  division,  2725. 

final  judgment  after  entry  of  interlocutory,  2780. 

on  decision  of  demurrer,  2777. 

vacating  final  judgment  for  failure  to  comply  with,  2819. 

inclusion  of  costs,  2934. 

award  of  additional  allowance  of  costs,  3005. 

appeal  to  court  of  appeals,  3612,  3620. 

appeal  to  appellate  division,  3626,  3644. 

review  on  appeal  from  final  judgment,  3714. 

INTERMEDIATE  ORDER, 
what  is,  3716. 

N.  Y.  Prac—  281. 


1482  "     index. 

[REFERENCES    ARE   TO   PAGES.] 

INTERPLEADER, 

actions  in  which  allowable,  1859. 

as  dependent  on  court  in  which  action  is  brought,  1860. 
facts  essential  to  remedy,  1860,  4146. 

payment  or  delivery  as  condition,  1861. 
miscellaneous  grounds  for  refusing  order,  1862,  4146. 
remedy  as  applicable  to  particular  defendants,  1863. 

insurance  companies,  1864,  4146. 

savings  banks,  1865,  4146. 
who  may  move,  1866. 

time  for  motion,  1866,  4146. 
notice  of  motion,  1866. 
affidavits,  1866. 
order,  1868,  4147. 

conditions,  1869. 
joinder  of  claimant  instead  of  substitution,  1870,  4147. 
requiring  security  for  costs  from  substituted  defendant,  1884. 
costs  as  discretionary,  2926. 
as  changing  form  of  action,  1869. 

INTERPRETERS, 

nature  of  office,  315,  4065. 

INTERROGATORIES, 

insertion  in  complaint  as  ground  of  demurrer,  1002. 

settlement  where  witness  is  to  be  examined  without  the  state,  1740. 

INTERVENTION, 

definition,  428. 

difference  between  intervention  and  substitution,  428. 

right  to  intervene  as  a  plaintiff,  429,  4071. 

discretion  of  court,  429,  4071. 

persons  entitled  to  intervene,  430,  4071. 

representative  persons,  431,  1647. 

person  principally  interested,  432. 

in  action  for  partition,  432. 
application,  433,  4072. 

time,  433. 
terms  of  order,  433,  4072. 

INTOXICATING  LIQUORS   (see,  also,  "Civil  Damage  Act"), 

change  of  place  of  trial  of  action  by  state  excise  commissioner,  1928. 
use  of  by  jurors  as  ground  for  new  trial,  2700. 
liquor  tax  certificate  as  leviable,  3108. 


index.  4483 

[references  are  to  pages.] 

INTOXICATING  LIQUORS— Cont'd. 

delivery  of  liquor  license,  in  supplementary  proceedings,  3332. 
prejudice  against  liquor  business  as  ground  of  challenge  to  juror, 
2195. 

INVENTORY, 

of  property  attached,  1474. 
on  levy  of  execution,  3116. 

IRREGULARITIES, 

definition,  700. 

taking  advantage  of  irregularities,  702. 

right  to  amend,  704. 

remedies  for  defective  pleading,  1062. 

ground  for  vacating  judgment,  2815. 

time  to  move  to  vacate  judgment  because  of,  2824. 

IRRELEVANCY, 

what  is,  and  effect,  in  pleadings,  833. 

ground  of  demurrer,  1001,  1003. 

striking  out  of  pleading  irrelevant  allegations,  1066. 

ISSUANCE, 

when  summons  is  issued,  714. 

ISSUES   (see,  also,  "Jury,"  "Trial"), 

when  issue  arises,  2137. 
kinds  of  issues,  2137. 

issues  of  law,  2137,  and  see  "Demurrer." 

issues  of  fact,  2137. 
mode  of  trying  issues  of  law,  2138,  2376. 
mode  of  trying  issues  of  fact,  2138. 
order  of  trial  of  issues  of  law  and  fact,  2165. 
framing  for  jury,  2154,  2159. 

amendment,  2158. 

form,  2158. 
trial  of  remainder  of  issues  where  part  are  tried  by  a  jury,  2166. 
order  of  trial  of  issues  of  law  and  fact,  1680,  2165. 
necessity  of  trial  of  all  the  issues,  2166. 
arrangement  of  issues  on  the  calendar,  2167. 
bringing  issues  to  trial,  2167. 
decision  on  issue  of  law,  2384. 

severance  of  action  where  issues  of  law  and  fact  arise  as  to  dif- 
ferent causes  of  action,  1707. 
new  trial  as  to  part  of,  2740. 


11S|  INDEX. 

|  REFERENCES    ARE   TO   PAGES.] 


JEOFAIL   (see  "Amendment"). 

JOINDER  OF  CAUSES  OF  ACTION    (see,  also,  "Consolidation  of  Ac- 
tions," "Severance  of  Actions,"  "Cause  of  Action"), 
whether  one  or  more  causes  of  action  are  stated,  58,  4047. 

asking  for  incidental  relief,  59,  4048. 

demand  of  multiplicity  of  relief,  59,  4048. 

separate  grounds  of  liability,  61. 

effect  of  allegations  constituting  surplusage,  61. 

identity  of  amounts  claimed  under  different  counts,  61. 

one  cause  of  action  where  other  causes  stated  are  insufficient, 
61. 

allegations  relating  to  damages,  62,  4048. 

effect  of  title  of  case,  62. 
causes  of  action  which  may  be  joined,  62. 

on  contract,  express  or  implied,  62,  4048. 

for  personal  injuries,  63,  4049. 

for  libel  or  slander,  64,  4049. 

for  injuries  to  real  property,  64. 

to  recover  real  property,  64. 

for  injuries  to  personal  property,  64,  4049. 

to  recover  chattels,  65. 

on  claims  against  a  trustee,  65. 

arising  out  of  same  transaction  or  transactions  connected  with 
same  subject  of  action,  65,  4049. 

for  penalties  incurred  under  game  law,  70. 
causes  of  action  must  belong  to  one  of  subdivisions,  71,  4050. 
consistency  of  causes  of  action,  71,  4050. 
causes  of  action  must  affect  all  the  parties,  72,  4050. 
parties  suing  or  sued  in  different  capacities,  75,  4050. 
causes  of  action  requiring  different  places  of  trial,  76. 
causes  of  action  relating  to  marriage,  77. 
joinder  of  causes  ex  contractu  and  ex  delicto,  77. 
causes  of  action  against  corporation  and  its  members,  78. 
waiver  of  failure  to  separate  by  failure  to  return  pleading,  1093. 
improper  joinder  as  ground  for  striking  out  one  cause  of  action, 

1068. 
misjoinder  as  ground  of  demurrer,  999. 

misjoinder  as  ground  for  motion  to  dismiss  complaint,  1082. 
in  creditor's  suit,  3410. 

I.  Effect. 

on  right  to  attachment,  1390. 
on  right  to  order  of  arrest,  1294. 


index.  4485 

[references  are  to  pages.] 
JOINDER  OF  CAUSES  OF  ACTION— Cont'd. 

on  right  to  jury  trial,  2146. 

on  right  to  reference,  2562. 

on  right  to  body  execution,  3202. 

costs  where  plaintiff  recovers  in  part  only,  2921. 

JOINDER  OF  PARTIES, 

proper  and  necessary  parties  distinguished,  394. 

common  law  rules,  395. 

what  constitutes  joint  obligation  or  liability,  396. 

liability  for  torts,  397. 
effect  of  death  of  joint  obligor  on  his  liability,  397. 
equity  rules,  399. 

joinder  in  actions  involving  a  trust,  401. 
of  plaintiffs,  402,  4070. 

joinder  of  real  party  in  interest  and  representative,  404,  4070. 

in  actions  ex  delicto,  405,  408. 

joinder  of  assignor  and  assignee,  408. 
of  defendants,  409,  4070. 

joinder  of  persons  severally  liable,  410. 

in  actions  ex  delicto,  412,  413. 

joint  debtor  act,  413. 

excuses  in  equity,  414. 
excuses  for  non-joinder  either  as  plaintiff  or  defendant,  414. 
code  rule  as  to  when  one  may  sue  or  defend  for  all,  415. 
joinder  of  other  defendants  as  affecting  place  of  trial,  357. 

JOINT  AND  SEVERAL, 

demurrers,  1005. 

answers,  942. 

bond  or  undertaking,  674. 

JOINT  OBLIGATIONS  AND  JOINT  LIABILITIES, 
what  constitute,  395-397. 
cumulative  remedies,  39,  40. 
sufficiency  of  demand  on  one  joint  debtor,  83.  * 

power  of  joint  debtor  to  take  case  out  of  statute  of  limitations,  519. 
necessity  for  joining  as  defendants  persons  jointly  liable,  413,  414. 
effect  of  death  of  person  jointly  liable,  397,  398. 
joint,  liability  on  bail  bond,  1371. 
joint  liability  for  wrongful  attachment,  1545. 
provisional   remedy   in   action  against  joint  debtors,  by  judgment 

creditor,  1268. 
attachment  of  property  of  one  defendant  where  ground  applies  only 

to  co-defendants,  1384. 


44SG  INDEX. 

[references  are  to  pages.] 
JOINT  OBLIGATIONS  AND  JOINT  LIABILITIES— Cont'd. 

continuing  action  where  dead  co-defendant  is  jointly  liable  on  con- 
tract, 2094. 

judgment  against  part  of  defendants,  27G0. 

indorsement  on  execution  against  parties  jointly  liable,  3098. 

power  of  one,  or  a  part,  to  confess  judgment,  2881. 

docketing  judgment  against  persons  jointly  indebted,  2793. 

release  of  joint  judgment  debtor,  2838. 

indorsement  on  body  execution,  3206. 

real  estate  held  jointly  as  subject  to  execution  sale,  3137. 

property  reached  by  supplemental  proceedings,  3265,  3272. 

creditor's  suit  to  reach  joint  property,  3400. 

exhaustion  of  remedy  against  all   as  condition  to  creditor's   suit 
against  one,  3392. 

property  held  jointly  as  liable  to  execution  against  one  joint  owner,. 
3114. 

proper  defendants  in  creditor's  suit,  3414. 

JOINT  STOCK  ASSOCIATION  (see  "Associations"). 

JUDGES, 

definition,  qualifications,  and  age  limit,  220,  221. 
de  facto  judges,  221. 
certificate  of  age,  221. 
duty  to  sign  judgment,  2758. 
presence  during  trial,  2374. 
improper  remarks  during  jury  trial,  2302,  2719. 
right  to  examine  witnesses,  2230. 
changing  place  of  trial  for  convenience  of,  1940. 
power  to  tax  costs,  3026. 
restrictions  and  liabilities,  222. 
prohibition  against  holding  other  offices,  222. 
fees  and  compensation  from  litigants,  222. 
power  of  judge,  his  partner,  or  his  clerk,  to  practice  law,  223. 
"liability  for  official  acts,  223. 
interest  of  ex-officio  judge,  224. 

power  of  judge  in  another  court  to  review  his  own  decision,  224. 
successive  applications  to  two  or  more  judges,  224. 
effect  of  change  of  judges,  225,  4057. 

powers  of  judge  out  of  office,  225. 
substitution  of  an  officer  in  special  proceedings,  226,  4057. 

proceedings  before  substituted  officer,  227. 
continuation  of  proceedings  before  another  judge  of  same  court,. 

227. 
interest  as  disqualification,  228,  4057. 

stockholder  of  corporation,  228. 


index.  4487 

[references  are  to  pages.] 

JUDGES— Cont'd. 

interest  in  costs,  229. 

depriving  party  of  remedy,  229. 
relationship  to  parties,  230,  4057. 

degree  of  relationship,  230. 

ministerial  act,  231. 

removal  of  disqualification,  231. 

waiver  of  disqualification,  231. 
interest  as  citizen  or  taxpayer,  231. 
witness  in  case,  232. 
absence  during  oral  argument,  232. 
review  of  own  acts,  232. 
right  to  preside  at  second  trial,  233. 
chamber  business,  233. 

who  may  make  order  for  substituted  service  of  summons,  754. 
who  may  make  ex  parte  orders  in  actions  in  other  courts,  603. 
who  may  make  order  for  service  of  summons  by  publication,  770. 
power  to  grant  leave  to  sue  on  bond  to  people  or  public  officers,  688. 
courts  or  judge  before  whom  to  make  motion,  599. 
power  of  judge  to  vacate  order,  635. 
before  whom  renewal  motion  should  be  made,  643. 
who  may  make  order  to  show  cause,  591. 
power  of  judge  to  grant  leave  to  renew  motion,  641. 
number  of  judges  for  special  or  trial  term  in  supreme  court,  163. 
judge  as  witness  as  divestiture  of  jurisdiction,  124. 
absence  of  judge  as  affecting  adjournment  of  term  of  court,  111. 
removal   of  action  to   supreme  court  when  county  judge  is   inca- 
pacitated, 192,  193. 
power  to  adjourn  term  of  court,  111. 
appointing  new  judge  for  trial  or  special  term  of  supreme  court, 

162. 
power  to  punish  for  contempt  for  disobedience  of  order  made  by 

judge  out  of  court,  319. 
change  of  judge  of  county  court,  191,  192. 
courts  as  synonymous  with  judges,  97. 
associate  justices  of  court  of  appeals,  150. 
removal  of  inferior  judges  by  supreme  court,  163. 
powers  of  county  judge,  188-191. 

I.  Power  Out  of  Court. 

rendition  of  judgment,  234. 
motion  for  a  new  trial,  234,  2729. 
stay  of  proceedings,  234. 
supplementary  proceedings,  234. 
issuance  and  vacation  of  attachment,  235. 


4:4:88  INDEX- 

[BEFEBENCES    ABE   TO   TACKS. 1 

JUDGES— Cont'd. 

punishment  for  contempt,  235. 
power  over  exceptions,  235. 
costs,  236. 

appellate  proceedings,  236. 

application  to  discharge  imprisoned  debtor,  236. 
injunctions,  236. 
mandamus,  236. 
habeas  corpus,  236. 
certiorari,  237. 
prohibition,  237. 

motion  to  vacate  order  made  out  of  court,  237. 
examination  before  trial,  237. 

leave  to  issue  execution  against  decedent's  property,  238. 
order  extending  time  to  plead,  238. 
order  to  show  cause,  23S. 

what  judges  may  make  orders  out  of  court,  and  transfer  of  mo- 
tions, 238. 
in  first  judicial  district,  238. 
power  to  make  motion  before  court  or  judge  out  of  court,  596. 
hearing  of  contested  motion  at  chambers,  112. 
power  of  judge  out  of  court  to  punish  for  contempt,  320. 
form  of  order,  239,  4057. 

JUDGMENT  (see,  also,  "Former  Adjudication"), 
by  default,  see  "Default  Judgment." 
by  confession,  see  "Confession  of  Judgment." 
of  sister  state  or  foreign  country,  see  "Foreign  Judgments." 
of  federal  courts,  see  "United  States  Courts." 
in  creditor's  suit,  see  "Creditor's  Suit." 
offer  to  allow,  270,  1989-2003. 
definition,  2751. 
kinds  of  judgments,  2752. 

final  and  interlocutory,  2752,  3610,  and  see  "Interlocutory  Judg- 
ments." 
judgment  or  order,  617,  2754. 
number  of  judgments  in  one  action,  2755. 
rendition  on  Sunday,  -105. 
form  and  contents,  2756. 

names  of  parties,  2757. 

amount,  2757. 

alternative  judgment,  2758. 

provisions  as  to  enforcement,  2758. 

date,  2758. 

signature,  2758. 


INDEX.  44-89 

[REFERENCES    ARE    TO   PAGES.] 

JUDGMENT— Cont'd. 

description  of  in  execution,  3092. 

statements  in  as  controlling  recitals  in  case,  2678. 
parties  for  or  against  whom  judgment  may  be  rendered,  2759. 

against  a  part  of  defendants,  2759. 

affirmative  relief  against  a  co-defendant,  2760. 

affirmative  relief  to  defendant,  2762. 

judgment  for  or  against  married  woman,  2763. 
extent  and  nature  of  relief  granted,  2763. 

where  there  is  no  answer,  2763,  4169. 

where  there  is  an  answer,  2764,  4169,  4170. 

determination  of  rights  of  parties  as  of  time  when  action  was 
commenced,  2766. 
judgment  on  part  of  issues  and  severance  of  action,  2767. 
interest  on,  2767. 
attorney's  lien  on,  293. 
on  admission  of  counterclaim,  2135. 
on  failure  to  reply,  992. 
on  submission  of  controversy,  38. 

reference  to,  in  sheriff's  deed  on  execution  sale,  3158. 
irregularities  in  as  relieving  purchaser  at  judicial  sale,  3236. 
condition  precedent  to  creditor's  suit,  3389. 
creditor's  suit  to  set  aside,  3386. 

entry  or  collection  as  precluding  motion  for  a  new  trial,  2685. 
judgment  on  a  verdict,  2768. 

general  verdict,  2768. 

special  verdict,  2769. 

amount  of  costs  on  application  for  judgment  on  special  verdict, 
2971. 
judgment  after  trial  by  court  or  referee  of  issues  of  fact,  2769. 
on  report  of  referee,  2647. 
direction  as  to  in  report  of  referee,  2619. 
judgment  after  trial  of  demurrer,  1016,  2774. 

where  issues  of  fact  have  also  been  tried,  2775. 

where  no  issue  of  fact  remains  to  be  tried,  2776. 
judgment  after  trial  of  specific  questions  of  fact  by  jury,  2164,  2778. 

by  referee,  2779. 
judgment  after  hearing  at  appellate  division,  2779. 

on  affirmance  on  appeal,  2779. 

on  denial  of  motion  for  new  trial,  2779. 

on  verdict  subject  to  opinion  of  court,  2780. 
final  judgment  after  entry  of  interlocutory  judgment,  2780,  4171. 
actions  on  domestic  judgments,  2840,  4172. 

pleading,  851,  2843. 

limitations,  466,  477,  499. 


4490  INDEX. 

[references  are  to  pages.] 
JUDGMENT— Cont'd. 

arrest,  1298. 

leave  to  sue,  86. 

pendency  of  as  precluding  leave  to  issue  execution,  3071. 

judgment  on  judgment  as  precluding  execution  on  first  judg- 
ment, 30G5. 

judgment  on  judgment  as  precluding  creditor's  suit  based  on 
first  judgment,  3388. 
actions  on  foreign  judgments,  2843. 

title  as  vesting  in  receiver  in  supplementary  proceedings,  3365. 
right  to  set  off  as  precluding  leave  to  issue  execution,  3071. 
right  to  attach,  1408. 
as  vacating  attachment,  1529. 
as  terminating  temporary  injunction,  1603. 

in  whose  name  entered  where  person  is  substituted  as  a  party,  2091. 
procedure  where  summons   is  served  on  only  part  of  defendants 

severally  liable,  1707. 
mode  of  attaching  judgment,  1468. 

motion  for  judgment  on  verdict  subject  to  opinion  of  court,  2289. 
on  offer  of  party  without  notice  to  attorney,  268,  269. 
on  decision  on  demurrer,  1015. 
on  pleadings  at  the  trial,  1084. 
demand  for  in  complaint,  927,  929. 
control  of  county  court  over  its  judgments,  186,  187. 
contest  as  to  leave  to  issue  as  special  proceeding,  17. 
validity  where  action  prosecuted  by  one  not  attorney,  242. 
rendition  at  chambers,  234. 
recovery  in  excess  of  bill  of  particulars,  880. 

I.  Entry. 

what  constitutes  entry,  2781,  4171. 
when  and  where  judgment  may  be  entered,  2782. 
who  may  obtain  entry  of  judgment,  2783. 

adjustment  of  costs  and  computation  of  interest  as  conditions- 
precedent,  2783. 

in  action  for  damages  for  death  by  wrongful  act,  2784. 
effect  of  informality  in  entering  judgment,  2784. 
entry  nunc  pi*o  tunc,  2785,  4171. 

after  death  of  party,  2785. 

after  passage  of  statute,  2785. 
notice  of  entry,  2785. 

written  notice  of  entry,  and  service  of  copy,  to  limit  time 
to  prepare  case,  2657. 
condition  precedent  to  issuance  of  execution,  3066. 
condition  precedent  to  holding  purchaser  at  judicial  sale,  3239.. 


INDEX.  4491 

[references  are  to  pages.] 

JUDGMENT— Cont'd. 

entry  after  motion  at  special  terra  for  new  trial,  2729. 

entry  after  exceptions  ordered  heard  by  appellate  division,  2723. 

II.  Docketing  and  Lien  Created  Thereby. 

judgments  which  may  be  docketed,  2790,  4171. 
docket  book,  2791. 

contents,  2791. 

dockets  to  be  public,  2793. 
judgment  book  as  distinguished  from  docket  book,  2791. 
docketing  before  issuance  of  execution,  3066. 
docketing  as  condition  to  creditor's  suit  based  on,  3395. 
expense  of  docketing  as  disbursement,  2990. 
transcripts  of  the  docket,  2793. 
docketing  transcript  of  judgment  of  justice  of  the  peace,  187, 

2794. 
effect  of  failure  to  docket,  2795. 

penalty  for  clerk's  neglect,  2795. 
time  for  docketing,  2795. 

statement  in  execution  as  to  time  of  docketing,  3094. 
effect  of  docketing,  2796,  4171. 

necessity  to  create  lien,  2796. 

judgment  against  persons  jointly  liable,  2796. 

judgment  against  executor  or  administrator,  2796. 
nature  and  extent  of  lien,  2797,  4171. 

property  fraudulently  conveyed,  2798. 

determinable  fee,  2798. 

life  estates,  2798. 

term  for  years,  2798. 

land  held  under  contract  for  purchase,  2798. 

property  held  merely  as  incident  to  passing  title,  2799. 

equitable  estates,  2799. 
waiver  of  lien,  2799. 

suing  to  set  aside  fraudulent  conveyance,  2799. 
power  of  court  over  docket,  2800. 
duration  of  lien,  2800. 

rights  after  expiration  of  ten  years,  2801. 

suspension  of  running  of  time,  2802,  4171. 

sheriff's  deed  as  extinguishing  lien  of  junior  judgments, 
3160. 

termination  of  lien  as  precluding  supplementary  proceed- 
ings, 3272. 
suspending  lien  on  appeal,  2803. 

restoring  lien,  2805. 
suspension  of  lien  by  imprisonment  under  body  execution,  3207. 


4492  index. 

[EEFEEENCES    ARE   TO   PAGES.] 

JUDGMENT— Cont'd. 

canceling  docket  of  reversed  or  modified  judgment,  2806. 
priorities,  2S07. 

as  against  mortgage,  2807. 

as  against  vendor's  lien,  2807. 
as  against  attorney's  lien,  303. 
effect  of  execution  sale  on  real  property,  3144. 

III.  Amendments. 

grounds,  2809. 

failure  of  judgment  to  conform  to  verdict,  report,  or  decis- 
ion, 2809. 
judicial  errors,  2810. 

void  judgments,  2S10. 
reducing  amount  of  recovery,  2811. 
application  at  foot  of  decree,  2811. 

retaxation  of  costs  as  ground  for  modifying,  3039. 
insertion  of  costs  after  taxation,  3034. 

amendment  where  costs  inserted  have  not  been  taxed,  3026. 
discretion  of  court,  2812. 
motion,  2812. 

time,  2813. 
order,  2813. 

amendment  nunc  pro  tunc,  2814. 
mode  of  amending,  2814. 
mandamus  to  compel  amendment,  2814. 

IV.  Vacation  or  Setting  Aside. 

general  considerations,  2815. 
motion  or  appeal  as  remedy,  3594. 
grounds,  2815. 

want  of  jurisdiction,  2817,  4171. 

fraud,  2818. 

want  of  cause  of  action,  2818. 

failure  of  final  to  comply  with  interlocutory  judgment,  2819. 

unauthorized  appearance  of  attorney,  2819,  4172. 

mistake,  inadvertence,  surprise,  or  excusable  neglect,  2820. 

error  in  taxing  costs,  3034. 
who  may  move,  2821. 

party,  2821. 

person  not  a  party,  2821. 

after  death  of  party,  2822. 

where  several  persons  are  entitled  to  move,  2823. 
time  for  motion,  2823. 

motion  based  on  irregularity,  2824,  4172. 


INDEX.  4493 

[references  are  to  pages.] 
JUDGMENT— Cont'd. 

motion  based  on  error  in  fact,  2825. 

motion  based  on  mistake,  surprise,  etc.,  2826,  4172. 
notice  of  motion,  2827. 

to  whom  notice  must  be  given,  2827. 

mode  of  giving  notice,  2828. 
motion  papers,  2828. 

counter-affidavits,  2829. 
waiver  of  motion  by  taking  an  appeal,  2829. 
hearing,  2829. 

discretion  of  court,  2829. 
order,  2830. 

restitution,  2831. 

effect,  2831. 
vacating  as  vacating  execution,  3065. 
setting  aside,  effect  on  extra  allowance,  2999. 
vacation  as  defense  to  creditor's  suit  based  on  judgment,  3396. 
implied  power  of  attorney  to  consent  to,  269. 

V.  Assignment. 

judgment  as  assignable,  2S32. 

acknowledgment  of  assignment,  2832. 

filing  of  notice  of  ownership,  2832. 

filing  and  noting  on  docket,  2832. 

power  of  assignee  to  obtain  leave  to  issue  execution  after  five 

years,  3070. 
right  of  assignee  to  redeem  from  execution  sale,  3164. 
assignee    as   entitled    to    institute   supplementary    proceedings 

3258. 

assignment  as  evidence  of  right  to  redeem  from  execution  sale 

3175. 
place  of  trial  of  action  to  set  aside,  354. 

VI.  Discharge  and  satisfaction. 

discharge  of  judgment  against  bankrupt,  2834,  4172. 

execution  on  judgment  against  a  bankrupt,  3065. 
satisfaction  piece,  2837,  4172. 
ground  for  quashing  execution,  3188. 
levy  of  execution  as,  3121. 

as  requiring  dismissal  of  supplementary  proceedings,  3345. 
as    discharging   receiver    in    supplementary    proceedings    3358 

3359. 
presumption  of  payment  from  lapse  of  time,  446. 
power  to  satisfy  after  substitution  of  attorneys,  282. 
as  precluding  sale  on  execution,  3126. 


44lU  INDEX. 

[references  are  to  pages.] 

JUDGMENT— Cont'd. 

on  return  of  execution,  2839. 

on  filing  satisfaction  of  execution,  2840. 
cancellation  of  docket  in  other  counties,  2840. 
vacation  of  satisfaction,  2840. 
imprisonment  on  body  execution,  3208. 

VII.  Enforcement. 

by  contempt  proceedings,  333,  335,  338,  339. 

by  execution,  see  "Execution  Against  the  Person,"  "Execution 

Against  Property." 
proceeding  to  enforce  as  special  proceeding,  17. 
examination  of  witness  outside  of  state  to  obtain  testimony  to 

carry  judgment  into  effect,  1732. 

JUDGMENT  CREDITOR'S  ACTION  (see  "Creditor's  Suit"). 

JUDGMENT  ROLL, 

necessity  of  filing,  27S6. 
time  of  filing,  2786. 

indorsement  of  time  of  filing,  2786. 
by  whom  prepared,  2787. 
signature,  2787. 
contents,  2787. 

summons,  2789. 

bill  of  particulars,  2789. 

notice  of  exceptions,  2389,  2789. 
effect  of  omission  to  insert  proper  papers,  2789. 
adding  amendment  to  judgment,  2814. 
amendment  nunc  pro  tunc,  2790. 

as  motion  paper  on  motion  to  vacate  judgment,  2828. 
on  confession  of  judgment,  2888. 
filing  before  issuance  of  execution,  3066. 
on  submission  of  controversy,  38. 

informality  in  making  up  as  cured  by  verdict,  report  or  decision, 
703. 

JUDICIAL  NOTICE. 

pleading  facts  of  which  courts  take  judicial  notice,  830. 

JUDICIAL  SALES, 
definition,  3216. 
power  of  court,  3216. 
notice  of  sale,  3217. 
conduct  of  sale,  3219. 
who  may  sell,  3220. 


INDEX.  4495 


[references  are  to  pages.] 
JUDICIAL  SALES— Cont'd. 

time,  3221. 
place,  3221. 
postponement,  3222. 
terms  of  sale,  3222. 
sale  in  parcels,  3223. 
who  may  purchase,  3224. 
memorandum  of  sale,  3225. 
stay  of  sale,  3226. 
effect  of  death  of  party  before  sale,  3226. 
presumption  of  regularity,  3226. 
setting  aside,  3227. 

for  inadequacy  of  price,  3229. 
for  failure  to  sell  in  parcels,  3230. 
for  failure  to  give  notice,  3230. 
discretion  of  court,  3230. 
time  for  motion,  3231. 
who  may  move,  3231. 
notice  of  motion,  3231. 
motion  papers,  3231. 
order,  3232. 
grounds  for  relieving  purchaser  from  his  bid,  3233. 
irregularities  in  judgment,  3236. 
nonjoinder  of  necessary  parties,  3236. 
existence  of  liens,  3237. 
false  representations,  3237. 
mistake  of  purchaser,  3237. 
mistakes  in  notice  of  sale,  3238. 
inability  to  obtain  possession,  3238. 
change  of  conditions  since  sale,  3238. 
procedure  where  purchaser  fails  to  perform,  3239. 
entry  of  judgment  as  condition  precedent,  3239. 
order  to  pay  bid,  3240. 
order  for  resale,  3241. 
application  of  proceeds,  3242. 
deed,  3243. 
title,  3244. 

obtaining  possession,  3245. 
redemption,  3246. 
compensation  of  referee,  3246. 
right  of  purchaser  to  appeal,  3659. 

JURAT, 

part  of  affidavit,  539,  540. 

of  affidavit  taken  without  the  state,  555,  556. 


4496  index. 

[references  are  to  pages.] 
JURISDICTION, 

state  or  federal,  see  "Federal  Courts." 

definition,  121. 

elements,  122. 

method  of  acquiring,  123,  4053. 

enlargement,  diminution,  or  divestiture  of  jurisdiction,  123. 

repeal  of  statute,  124. 

divestiture  by  subsequent  event,  124. 

enlargement  of  jurisdiction,  124. 
amount  in  controversy,  124. 

amount  claimed,  124. 

in  actions  where  property  rights  are  involved,  125. 

interest,  125. 

on  consolidation  of  actions,  125. 

abandonment  of  part  of  claim,  125. 

on  removal  of  action,  125. 
local  and  transitory  actions,  126. 
retaining  action  for  complete  relief,  126. 
concurrent  and  exclusive  jurisdiction,  125,  4053. 
territorial  extent  of  jurisdiction,  127,  4053. 

enforcement  of  statutes  of  another  state  or  country,  129. 

actions  of  trespass  or  waste,  131. 

actions  based  on  torts  in  general,  131,  4053. 

actions  on  contracts,  132. 

actions  relating  to  foreign  trusts,  132. 

actions  by  and  against  foreign  corporations,  134,  4054. 
presumptions  as  to,  135,  4055. 
effect  of  want  of,  136. 

waiver  of  objections  to  complaint  as  to  jurisdiction  of  person,  1090. 
sufficiency  of  answer  setting  up  want  of  jurisdiction,  960. 
allegation  of  in  complaint,  924. 
courts  of  general  and  of  inferior  jurisdiction,  99. 
want  of  jurisdiction  of  subject  as  ground  for  demurrer,  996,  1004. 
want  of  jurisdiction  of  person  as  ground  for  demurrer,  996. 
pleading  want  of  as  a  defense,  958. 

appearance  as  giving  jurisdiction  of  subject  matter,  816. 
general  jurisdiction  of  supreme  court,  156-160. 

failure  to  appoint  guardian  ad  litem  for  infant  plaintiff  as  depriv- 
ing court  of  jurisdiction,  93. 
jurisdictional  defects  as  distinguished  from  irregularities,  701. 
obtaining  by  granting  of  provisional  remedy,  1268. 
to  grant  order  of  arrest.  1275. 
to  appoint  receiver,  1627. 
grant  of  preliminary  injunction,  1559. 


index.  4497 

[references  are  to  pages.] 
JURISDICTION— Cont'd. 

effect  of  recitals  in  judgment,  2756. 
want  of  as  ground  for  vacating  judgment,  2817. 
amendment  of  judgment  as  affecting,  2811. 

power  to  award  costs  where  action  dismissed  because  of  want  of, 
2903. 

JURY  (see,  also,  "Grand  Jury,"  "Verdict,"  "Trial"), 
trial  by  jury  as  matter  of  right,  62,  2138,  4156. 
waiver  of  right  to  trial  by  jury,  2142. 

failure  to  appear  at  the  trial,  2143. 

filing  of  written  waiver,  2143. 

oral  consent  in  open  court,  2143. 

moving  trial  without  a  jury  or  failure  to  object,  2143. 

joinder  of  legal  and  equitable  causes  of  action  or  prayers  for 
relief,  2146. 

reference,  2147,  4157. 
trial  of  counterclaim,  2148. 
action  triable  by  the  court  without  a  jury,  2149,  4157. 

waiver  of  right  to  trial  without  a  jury,  2153. 
framing  issues  for  jury  as  matter  of  right,  2154. 

time  for  motion,  2156. 

waiver  of  right,  2157. 

noticing  for  trial,  2157. 

settlement  of  issues,  2157. 

order,  2157. 

the  issues,  and  verdict  thereon,  2158. 
framing  issues  for  jury  as  matter  of  discretion,  2159,  4157. 

order,  2162. 

issues  and  settlement  thereof,  2162. 

trial  of  issues,  2163. 

verdict  and  subsequent  procedure,  2163,  4157. 

motion  for  new  trial,  2165. 

effect  on  verdict  of  reversal  of  judgment,  2165. 
selecting  and  procuring  attendance  of  trial  jurors,  2177. 
drawing  the  jury,  195,  2177. 
talesmen  and  additional  jurors,  2179. 
penalties  for  failure  to  attend,  2180. 
qualifications  of  jurors,  2181. 

public  officers  who  are  disqualified,  2183. 
persons  qualified  but  entitled  to  exemption  from  service,  2183,  4157. 

evidence  of  exemption,  2185. 
discharge  of  juror,  2187. 
excusing  juror  from  service,  2187. 
kinds  of  challenges,  2188. 
N.  Y.  Prac—  282. 


4498  INDEX. 

[references  are  to  pages.] 
JURY— Cont'd. 

challenges  to  the  array,  2190. 

peremptory  challenges,  2191. 
grounds  of  challenge  to  the  polls,  2191. 

relative  of  party,  2192. 

shareholder  in  corporation  which  is  a  party,  2193. 

citizenship  where  municipal  corporation  is  a  party,  2193. 

opinion  on  the  merits,  2194. 

prejudice  against  particular  actions,  2195. 

prejudiced  against  business  of  party,  2195. 

acquaintance  or  business  relations  with  opposing  counsel,  2196. 

tenant  or  employe  of  party,  2196. 

relations  with  expert  witness,  2197. 

juror  subpoenaed  as  witness,  2197. 
examination  of  jurors,  2197,  4157. 

challenges,  2198. 

trial  of  challenges,  2199. 
administering  oath  to  jury,  2200. 
waiver  of  objections,  2201. 
custody  and  conduct,  2349. 

papers  which  may  be  taken  to  jury  room,  2350. 

communications  between  judge  and  jury  after  the  jury  retire,  2350. 
discharge  or  failure  to  agree,  2351. 
mode  of  arriving  at  verdict,  2352. 
withdrawal  of  juror,  2277. 
postponement  to  move  for  jury  trial,  2024. 
request  to  go  to  jury  after  motion  for  nonsuit,  2293. 
to  try  claims  of  third  persons  to  property  attached,  1485. 
struck  jury,  2054. 
foreign  jury,  2059. 

reading  law  to  on  summing  up  by  counsel,  2304. 
polling  the  jurors,  2358. 
amending  verdict,  2362. 
offer  of  proof  in  presence  of,  2230. 

motion  for  non-suit  as  precluding  right  to  go  to  jury,  2296. 
framing  issues  for  jury  as  matter  of  right,  2154. 
as  matter  of  discretion,  2159. 

additional  instructions  after  jury  have  retired,  2339,  2350. 
to  try  title  to  property  levied  on,  3123. 
to  assess  damages,  on  writ  of  inquiry,  2863. 
misconduct  as  ground  for  new  trial,  2700. 
failure  to  disclose  facts  on  examination  as  ground  for  new  trial, 

2702. 
disqualification  of  jurors  as  ground  for  new  trial,  2702. 


index.  4499 

[references  are  to  pages.] 

JURY— Cont'd. 

motion  to  withdraw  juror  as  condition  to  grant  of  new  trial  for 

surprise,  2714. 
affidavits  of  jurors  on  motion  for  new  trial,  2734. 
fees  as  disbursements,  2985. 
improper  act  of  jurors  as  civil  contempt,  331. 
drawing  for  county  court,  195. 

mistake  in  name  as  cured  by  verdict,  report  or  decision,  703. 
act  of  reporter  in  secreting  himself  in  jury  room  as  contempt,  321. 

JUSTICES  (see  "Judges"). 

JUSTICES  OF  THE  PEACE, 

nature  of  courts,  212. 

powers  of  county  court  over  docketed  judgment  of  justice,  187. 

proceedings  to  remove  justice  of  peace  as  special  proceeding,  17. 

use  of  justice's  judgment  as  counterclaim,  972. 

proceeding  to  remove  justice  of  peace  as  special  proceeding,  17. 

docketing  transcript  of  judgment,  2794. 

costs  after  discontinuance  on  plea  of  title,  2924. 

right  of  judgment  creditor  to  redeem  from  execution  sale,  3164. 

description  of  judgment  in  execution,  3093. 

supplementary  proceedings  on  judgment,  3274. 

judgment  as  sufficient  to  support  creditor's  suit,  3394. 

offer  of  judgment  on  appeal  from,  2002. 

JUSTIFICATION, 

of  sureties  in  bond  or  undertaking,  679. 

failure  of  sureties  to  justify  as  defense  to  action  on  undertaking, 

689. 
as  a  partial  defense,  961. 
of  bail,  1360. 
of  sureties  on  undertaking  given  to  discharge  attachment,  1506. 

K. 

KNOWLEDGE   (see,  also,  "Ignorance"), 

as  precluding  motions  to  obtain  information,  see  particular  mo- 
tions. 


LACHES  (see,  also,  "Statute  of  Limitations"), 

ground  of  demurrer,  1001. 

dismissal  of  action  for  failure  to  proceed,  2125. 


4500  INDEX. 

[BJ  i  KUKNCKS  are  to  pages.] 
LANDLORD  AND  TENANT  (see,  also,  "Rent,"  "Use  and  Occupation"), 

causes  of  action  to  enjoin  breach  of  lease  and  for  forfeiture  as  in- 
consistent, 72. 

time  within  which  to  bring  action  to  recover  rent  due  under  sealed 
lease,  469. 

challenge  to  juror  because  tenant  of  party,  2196. 

power  of  receiver  to  lease  property,  1645. 

leasehold  property  as  subject  to  execution,  3139. 

interest  of  lessee  as  leviable,  3113. 

lien  of  judgment  on,  2798. 

extinguishment  by  sheriff's  deed  on  execution  sale,  3160. 

power  of  receiver  in  supplementary  proceedings  to  lease  property 
of  debtor,  3367. 

LEADING  QUESTIONS, 

propriety,  2237,  2243,  2253. 
LEASE  (see  "Landlord  and  Tenant"). 

LEAVE  OF  COURT, 

necessity  to  obtain  amendment,  706. 

necessity  in  order  to  serve  supplemental  pleading,  1051. 

renewal  of  motion  as  dependent  on  leave,  639. 

to  discontinue  action,  2111. 

to  issue  execution,  3069. 

after  five  years,  3069. 

after  death  of  defendant,  3073,  3079. 

on  judgments  against  executor  or  administrator,  3080. 
to  issue  second  execution,  3086. 
issuance  of  body  execution,  3203. 
to  appeal  to  court  of  appeals,  3619. 

LEAVE  TO  SUE, 

as  part  of  cause  of  action,  85. 

actions  where  leave  to  sue  is  required  by  statute,  86,  4052. 

actions  on  judgments,  86. 

actions  on  mortgage  debt,  86. 

actions  by  private  persons  on  official  bonds,  87,  4052. 

actions  by  infant  for  partition,  87. 

action  by  attorney  general  to  annul  corporation,  87. 

action  by  plaintiff  in  attachment,  87. 
actions  where  leave  to  sue  is  required  because  of  parties,  88. 

actions  by  and  against  receivers,  88,  1647,  1652,  4052. 

actions  by  and  against  lunatics,  88. 
granting  leave  to  sue  nunc  pro  tunc,  88. 
suing  without  leave  as  civil  contempt,  329. 


INDEX.  4501 

[references  are  to  pages.] 

LEAVE  TO  SUE— Cont'd. 

power  to  grant  leave  to  sue  on  bond  to  people  or  public  officers, 

688. 
notice  to  prosecute  action  after  settlement  to  protect  attorney's 

lien,  299,  300. 
on  undertaking  given  to  obtain  order  of  arrest,  1329. 
want  of  leave  as  ground  for  stay  of  proceedings,  1911. 
on  judgment,  2841. 
creditor's  suit,  3389. 

actions  by  receiver  in  supplementary  proceedings,  3373. 
order  as  appealable,  3652. 

LEGAL  EFFECT  (see,  also,  "Conclusions"), 

statement  of  facts  in  pleading  according  to  their  legal  effect,  824. 

LEGATEES  (see  "Heirs,  Devisees  and  Legatees"). 

LEGISLATURE, 

exemption  from  arrest  of  members  or  officers  of  legislature,  1311. 

LETTERS, 

discovery  and  inspection,  1833. 

LETTERS  ROGATORY, 

definition  and  nature  of,  1730. 

LEVY, 

under  attachment,  1464. 

under  junior  warrant  of  attachment,  1531. 

of  execution,  3115,  3140,  and  see  "Execution  against  Property." 

LIBEL  AND  SLANDER, 

right  to  join  causes  of  action,  64. 

time  within  which  to  sue,  482. 

place  of  trial  of  action  against  public  officer,  358. 

definiteness  and  certainty  required  in  pleading,  855. 

right  to  require  bill  of  particulars,  868. 

pleading  mitigating  circumstances,  962. 

libelous  publication  as  criminal  contempt,  323. 

causes  of  action  for  assault  and  for  slander  as  arising  out  of  the 

same  transaction,  69. 
consolidation  of  actions,  1692. 
abatement  of  action  on  death  of  party,  2066. 
preference  of  action  on  calendar,  1680. 
right  to  open  and  close  trial,  2205. 

severance  of  action  where  issues  of  law  and  fact  arise  as  to  differ- 
ent causes  of  action,  1707. 
costs  as  of  course,  2915. 


4502  INDEX. 

[references  are  to  pages.] 
LIBRARY, 

exemption,  1421. 

LICENSE, 

costs  as  of  right  where  license  to  use  realty  involved,  2909. 
interest  of  licensee  as  leviable,  3113. 

delivery  of  liquor  license,  in  supplementary  proceedings,  3332. 
excise  license  as  property  reached  by  creditor's  suit,  3405. 

LIENS  (see,  also,  "Mechanics'  Liens,"  "Attachment,"  "Judgment,"  "Ex- 
ecution against  Property"), 

jurisdiction  to  enforce  admiralty  liens,  138,  139. 

attorney's  lien,  288  et  seq. 

enforcement  of  lien  as  cumulative  remedy,  40. 

of  judgment  by  confession,  2888. 

of  judgment  opened  but  allowed  to  stand  as  security,  2877. 

of  referee  on  his  report,  3049. 

of  execution  on  personal  property,  when  created,  3100. 

creditor's  suit  as  creating,  3417. 

service  of  order  to  appear  in  supplementary  proceedings,  as  creat- 
ing, 3297. 

existence  of  as  relieving  purchaser  from  bid  at  judicial  sale,  3237. 

LIFE  ESTATES, 

lien  of  judgment  on,  2798. 

LIMITATION  OF  ACTIONS  (see  "Statute  of  Limitations"). 

LIQUORS  (see  "Intoxicating  Liquors"). 

LIS  PENDENS, 

filing  of  notice  as  commencement  of  action,  714. 
omission  to  file  as  postponing  attachment  lien,  1483. 
filing  of  as  precluding  right  to  temporary  injunction,  1564. 
filing  in  creditor's  suit,  3418. 

LOST  INSTRUMENT, 

substitution  of  copy  for  lost  execution,  3088. 

LOTTERIES, 

action  to  recover  moneys  paid  as  action  to  recover  penalty,  1279. 

LUNATICS, 

application  to  revoke  commission  as  special  proceeding,  18. 
necessity  of  leave  to  sue  in  actions  by  and  against,  88. 
bringing  action  against,  without  leave,  as  contempt,  329. 
cause  of  action  in  favor  of  committee  as  arising  from  same  subject 
of  action,  69. 


INDEX.  4503 

[references  are  to  pages.] 

LUNATICS— Cont'd. 

petition  for  leave  to  sue  lunatic  as  special  proceeding,  17. 

jurisdiction  of  supreme  court,  159. 

manner  of  serving  summons  on,  738. 

personal  disability  as  extending  time  to  sue,  465,  511,  512. 

exemption  from  arrest,  1307. 

right  to  attach  property  of,  1384. 

examination  of  as  party  before  trial,  1777. 

guardian  ad  litem  for  insane  defendant,  2037. 

who  appointed  guardian  ad  litem,  2044. 

compelling  committee  to  give  security  for  costs,  1895. 

taking  testimony  of  person  in  asylum  in  another  state,  1733. 

power  of  committee  to  sue  as  poor  person,  1873. 

preference  on  calendar  where  committee  of  lunatic  is  a  party,  1676. 

creditor's  suit  to  set  aside  conveyance  by,  3385. 

jurisdiction  to  open  default  of,  2869. 

time  to  move  to  vacate  judgment,  2826. 

M. 

MAIL, 

necessity  order  for  publication  of  summons  direct  mailing  of  cop- 
ies, 772. 
necessity  of  mailing  copy  where  service  by  publication,  779. 
service  of  papers  by,  659. 
return  of  packet  containing  deposition  by,  1761. 

MALICIOUS  PROSECUTION, 

time  within  which  to  sue,  482. 

right  to  require  bill  of  particulars,  868. 

costs  as  of  right,  2915. 

MALPRACTICE  (see,  also,  "Physicians  and  Surgeons"), 
ground  for  disbarment  of  attorney,  250. 

MANAGING  AGENT, 
who  is,  742,  748. 

MANDAMUS, 

jurisdiction  of  supreme  court,  158. 

power  of  judge  out  of  court,  236. 

county  in  which  to  apply  for,  against  superintendent  of  banking, 

361. 
preference  on  calendar,  1675. 
reference,  2572. 


4504  INDEX. 

[references  are  to  pages.] 
MANDAMUS— Cont'd. 

to  compel  amendment  of  judgment,  2814. 
to  compel  sheriff  to  execute  deed,  3156. 
to  collect  costs,  3042. 
double  costs,  2992. 

MANDATE, 

general  rules  as  to,  3089. 

disobedience  as  civil  contempt,  326. 

resistance  as  criminal  contempt,  321. 

disobedience  as  criminal  contempt,  321. 

definiteness  in  order  that  disobedience  be  a  contempt,  334. 

summons  as,  712. 

subpoena  as,  1976. 

MAPS, 

use  of  in  opening  speech  to  jury,  2209. 
sums  paid  for  as  disbursements,  2988. 

MARITIME  CASES   (see  "Admiralty,"  "Salvage,"  "Prize"). 

MARITIME  LIENS  (see  "Admiralty"). 

MARRIAGE     (see,    also,    "Husband    and    Wife,"    "Married    Women," 
"Breach  of  Promise  to  Marry,"  "Divorce,"'  "Criminal  Conversa- 
tion," "Alienation  of  Affections,"  "Matrimonial  Actions"), 
as  abating  action,  2063. 

MARRIED  WOMEN, 

personal  disability  as  extending  time  to  sue,  465. 

mode  of  serving  summons  on,  740. 

name  of  in  summons,  716. 

exemption  from  arrest,  1306. 

attachment  of  property  of,  1384. 

enjoining  wife  of  a  party,  1560. 

right  to  sue  as  poor  persons,  1873. 

judgment  for  or  against,  27C3. 

power  to  confess  judgment,  2880. 

supplementary  proceedings  against,  3259. 

MASTER  AND  SERVANT, 

necessity  of  notice  before   suing   master  for  personal   injury,   84, 

4051. 
when  cause  of  action  for  services  accrues,  500,  501. 
discovery  and  inspection  in  actions  between,  1830. 
challenge  to  juror  because  employe  of  party,  2196. 
what  is  action  for  wages  or  services,  3624. 


INDEX.  4505 

[references  are  to  pages.] 
MATRIMONIAL  ACTIONS  (see,  also,  "Divorce,"  "Alimony"), 
service  of  summons  by  publication,  761. 
indorsement  on  summons,  724. 
affidavit  of  service  of  summons,  787. 
judgment,  2770. 

time  to  bring  action  to  annul  marriage,  477. 
jurisdiction  of  supreme  court  to  declare  marriage  void,  159. 

MECHANICS'  LIENS, 

jurisdiction  of  county  court  to  foreclose,  185. 

place  of  trial  of  action  on  bond  given  to  discharge  lien,  360. 

pendency  of  action  to  foreclose  as  precluding  action  for  services, 

and  vice  versa,  49. 
trial  by  jury  of  foreclosure  suit,  2150. 
appointment  of  receiver  in  action  to  foreclose,  1626. 
offer  to  allow  judgment  before  trial,  effect,  1999. 
reference  in  action  to  foreclose,  2566. 
costs  as  discretionary,  2926,  2929. 
additional  allowances,  2995,  3011. 

MEMORANDUM, 

as  part  of  judgment,  2757. 

of  judicial  sale,  3225. 

of  death  of  party,  on  docket  of  judgment,  2793. 

use  of  to  refresh  memory  of  witness,  2237. 

MILITIA  (see,  also,  "War"), 

jurisdiction  of  action  pertaining  to,  133,  134. 
exemption  from  arrest,  1312. 

MINISTERS, 

exemption  from  service  of  summons,  732. 
exemption  from  arrest,  1311. 

MISCONDUCT, 

of  referee  as  ground  for  vacating  report,  2630. 
ground  for  new  trial,  2698,  and  see  "New  Trial." 

MISDEMEANOR, 

ground  for  disbarment  of  attorney,  251. 

MISNOMER  (see,  also,  "Names,"  "Mistake"), 
necessity  of  pleading  as  defense,  957. 
sufficiency  of  plea,  961. 
ground  for  vacating  order  of  arrest,  1347. 


4506  INDEX. 

[bkfekences  are  to  pages.] 
MISTAKE, 

relief  against  mistakes,  omissions  or  neglect,  708,  4086. 

of  court  as  amendable,  705. 

effect  of  service  of  summons  on  wrong  person,  735. 

in  name,  amount,  description  or  time,  as  cured  by  verdict,  report 

or  decision,  703. 
errors  in  summons,  794. 

errors  in  copy  where  original  is  correct,  794. 

motion  to  set  aside  summons,  794. 

waiver  of  objections,  794. 
amendments,  795. 
errors  in  service  of  summons,  798. 

motion  to  vacate  service,  798. 

waiver  of  objections,  799. 

amendments,  800. 
effect  of  in  proof  of  service  of  summons,  784. 
effect  of  clerical  errors  in  pleadings,  909. 

amendment  on  the  trial  to  correct  mistake  in  pleadings,  1030. 
effect  of  in  recital  in  bond  or  undertaking,  675. 
effect  of  mistakes  in  summons,  794. 
effect  of  in  service  of  summons,  798. 

effect  of  in  order  for  service  of  summons  by  publication,  771,  772. 
in  verdict,  correction,  2366. 
in  judgment  as  amendable,  2809. 
ground  for  vacating  judgment,  2820. 

time  for  motion,  2826. 
ground  for  opening  default,  2870. 
of  witness  as  ground  for  new  trial,  2713. 
ground  for  setting  aside  judicial  sale,  3228. 
of  purchaser  at  judicial  sale  as  relieving  him  from  his  bid,  3237. 

MITIGATION, 

in  action  for  a  wrong  as  partial  defense,  962. 

MODIFICATION, 
of  order,  633. 

MONEY  (see,  also,  "Payment  into  Court"), 
leviable,  3107. 
execution  sale  of,  3129. 
ordering  payment  over,  in  supplementary  proceedings,  3331. 

MONEY  HAD  AND  RECEP7ED, 
nature  of  action,  30. 
when  cause  of  action  accrues,  499,  500. 
cause  of  action  as  inconsistent  with  one  for  trover,  72. 


index.  450T 

[references  are  to  pages.] 
MONEY  HAD  AND  RECEIVED— Cont'd, 
interpleader  in  action,  1859. 
reference  where  long  account  is  involved,  2566. 
recovery  for  in  action  ex  delicto,  2766. 

MONEY  LOANED, 

confession  of  judgment  for,  sufficiency  of  statement,  2883. 
MONTH, 

definition,  694. 

MORTGAGES  (see,  also,  "Foreclosure"), 

of  personal  property,  see  "Chattel  Mortgages." 
priority  as  against  attorney's  lien,  303. 
proceeding  to  establish  lien  as  special  proceeding,  17. 
right  to  sue  on  debt  while  mortgage  is  being  foreclosed,  49,  86. 
place  of  trial  of  action  by  junior  mortgagee  against  prior  mort- 
gagee to  compel  assignment  of  latter's  mortgage,  353. 
period  of  limitation  to  redeem  from  mortgage,  468. 
place  of  trial  of  action  to  set  aside,  352. 
interest  of  mortgagor  as  attachable,  1407. 
copy  to  be  furnished  on  redeeming  from  execution  sale,  3179. 
equity  of  redemption  as  subject  to  execution,  3139. 
right  of  mortgagee  to  redeem  from  execution  sale,  3163. 
indorsement  on  execution  against  mortgaged  property,  3098. 
delivery  to  creditor  in  supplementary  proceedings,  3332. 

MOTION  PAPERS   (see,  also,  "Affidavits"), 

what  are,  572. 
entitling,  573. 
address,  573. 
contents,  574. 

showing  that  motion  is  made  in  proper  county,  574. 

technical  defects,  574. 

prefixing  statement  of  facts  of  case,  574. 

statement  as  to  previous  application,  575,  4081. 
counter-affidavits,  575,  4081. 
service,  576,  4081. 
filing,  577. 

specification  in  order,  620. 
service  of  papers  on  attorney  after  judgment,  261. 

MOTIONS, 

notice,  see  "Notice  of  Motion." 
motion  papers,  see  "Motion  Papers." 
affidavits,  see  "Affidavits." 


450S  INDEX. 

[references  are  to  tages.] 

MOTIONS— Cont'd. 

as  distinguished  from  special  proceedings,  13. 

enumerated  and  non-enumerated  motions,  167,  168. 

who  may  move  to  bring  in  new  parties,  424. 

definition,  nature  and  kinds,  569. 

motion  or  appeal,  569. 

difference  between  motion  and  petition,  570,  4081. 

kinds  of  motions,  570. 

enumerated  and  non-enumerated  motions,  570. 
who  may  move,  571. 
who  may  be  moved  against,  572. 
withdrawal  of  motion,  572. 
motions  relating  to  appeals,  see  "Appeal." 

I.  Compelling  Making  of  Affidavit  or  Deposition  for  Motion. 

discretion  of  court,  578,  4081. 

refusal  of  witness  to  make  as  condition  precedent,  578. 

who  may  be  examined,  579. 

the  application,  579. 

who  may  apply,  579. 

notice,  579. 

affidavit,  580. 
•  vacation  or  arrest  of  order,  581. 
procuring  attendance  of  witness,  581. 
conduct  of  examination,  582. 
the  deposition,  582. 

II.  Place  and  Time  for  Motion. 

county  and  district  in  which  to  move,  595. 

in  the  first  judicial  district,  596,  4083. 

motions  relating  to  receivers  and  sequestration,  596. 

effect  of  agreement  of  counsel,  597. 

validity  of  order  made  in  wrong  county,  597. 
time  for  motion,  597,  4083. 

excuses  for  delay,  598. 

extension  and  relief  from  failure  to  move  promptly,  598. 

III.  Court  or  Judge  Before  Whom  to  Move. 
special  term,  599. 

terms  adjourned  to  chambers,  600. 
in  first  judicial  district,  600. 
court  or  judge  out  of  court,  601. 

motions  in  first  judicial  district,  602. 
motions  in  New  York  city  court,  602. 


INDEX.  4500 

[references  are  to  pages.] 

MOTIONS— Cont'd. 

judges   who   may   make   ex   parte   orders    in   actions   in   other 
courts,  603. 

county  judges,  603. 

judges  of  supreme  court,  604. 

actions  in  New  York  city  court,  604. 
before  whom  application  may  be  renewed,  604. 
motion  to  vacate  or  modify  order,  605,  4083. 
jurisdiction  of  special  term,  167,  168. 
power  of  county  judge  to  hear,  189. 
hearing  at  chambers,  112. 

IV.  Hearing. 

time  for,  607. 

postponement,  607. 
place  of  hearing  and  before  whom,  607. 

transfer  of  motion,  608. 
burden  of  proof,  608. 
right  to  open  argument,  608. 
time  for  argument,  608. 
evidence  in  addition  to  original  affidavits,  609,  4083. 

papers  to  be  furnished  on  enumerated  motions,  609. 

supplementary  affidavits,  609. 

reference,  609,  2571. 

examination  of  witnesses  before  judge,  610. 
effect  of  pendency  of  another  motion,  610. 
of  action,  611. 

scope  of  hearing  as  limited  by  notice  of  motion,  611. 
final  disposition  of  motion,  611. 
affirmative  relief  to  opposing  party,  612. 
conformity  to  relief  sought  by  motion,  612. 

prayer  for  general  relief,  612,  4083. 

order  by  default,  613. 
default  of  opposing  party,  613,  4083. 
of  moving  party,  613. 
time  for  decision,  614. 
hearing  on  demurrer  as  contested  motion,  1010. 

V.  Particular  Motions. 

for  appointment  of  guardian  ad  litem  for  plaintiff,  90. 

for  bill  of  particulars,  870. 

for  more  specific  bill  of  particulars,  879. 

to  bring  in  new  parties,  425. 

to  vacate  order,  638. 

to  strike  out  appearance,  817. 


4510  INDEX. 

[INFERENCES  are  to  pages.] 

MOTIONS— Cont'd. 

to  set  aside  or  strike  out  unverified  pleadings,  901. 

to  vacate  service  of  summons,  798. 

to  intervene  as  party,  433. 

to  compel  making  of  affidavit  or  deposition  to  be  used  on  mo- 
tion, 579. 

to  make  pleading  more  definite  and  certain,  1063. 

to  set  aside  summons,  794. 

to  strike  out  defense  where  matters  may  be  shown  under  gen- 
eral denial,  958. 

for  a  struck  jury,  2054. 

for  order  of  arrest,  1314. 

for  change  of  place  of  trial,  1944. 

to  vacate  attachment,  1516. 

to  increase  security  given  by  plaintiff  on  obtaining  arrest,  1339. 

to  amend  judgment,  2812. 

to  open  default  judgment.  2872. 

to  open  default  in  filing  case,  2675. 

to  compel  clerk  to  tax  costs,  3034. 

to  retax  costs,  3036. 

to  set  aside  execution  sale,  3146. 

for  new  trial  on  judge's  minutes,  2717. 

for  extra  allowance  of  costs,  3021. 

for  resettlement  of  case,  2679. 

determination  of  right  to  proceeds  of  execution  sale,  3135. 

compelling  sheriff  to  execute  deed,  3156. 

quashing  of  execution,  3187. 

VI.  Costs. 

discretionary,  2935. 

sum  fixed  as  costs,  2972. 

more  than  one  bill  of  costs,  2942. 

double  costs,  2993. 

execution  to  collect  motion  costs,  3040. 

MULTIPLICITY  OF  RELIEF, 

affecting  question  whether  one  or  more  causes  of  action  are  stated, 
59,  60. 
MUNICIPAL  CORPORATIONS, 

necessity  of  notice  before  suing  for  personal  injuries,  84. 

proceedings  against  officer  as  special  proceedings,  17. 

mode  of  serving  summons  in  action  against,  750. 

time  to  sue  for  personal  injuries,  482,  484. 

right  of  one  taxpayer  to  sue  in  behalf  of  all  to  enjoin  acts  of,  417. 


INDEX.  4511 

[references  are  to  pages.] 

MUNICIPAL  CORPORATIONS— Cont'd. 

abatement  of  action  by  city  for  defective  sidewalk,  2068. 

citizenship  as  ground  of  challenge  to  juror,  2193. 

exemption  of  police  officer  from  arrest,  1313. 

preference  on  calendar  of  actions  by  or  against,  1675. 

temporary  injunction  in  taxpayer's  suit,  1568. 

default  judgment  in  action  against,  2850. 

costs  in  action  against,  2939. 

liability  for  costs,  2961. 

property  as  subject  to  execution,  3106. 

garnishment  of  salaries  of  employees,  3110,   3111. 

moneys  of  as  subject  to  supplementary  proceedings,  3261. 

security  on  appeal,  3727. 

liability  for  costs  on  appeal,  3940. 

K 

NAMES  (see,  also,  "Misnomer"), 

amendment  of  in  order,  633. 

necessity  of  stating  definitely  in  pleadings,  848. 

in  judgment,  2757. 

fictitious  name  in  judgment,  amendment,  2800. 

of  judgment  debtor  in  docket  book,  2791. 

NATIONAL  BANKS, 

jurisdiction  of  actions  as  between  state  and  federal  courts,  140. 
place  of  trial  of  actions  against,  364. 
right  to  attach  property  of,  1384,  1394. 
security  for  costs,  1887. 

NAVY, 

jurisdiction  of  courts  in  naval  reservation,  143. 
jurisdiction  of  action  against  naval  officer,  144. 
exemption  of  marines  from  arrest,  1312. 

NECESSARIES, 

what  is  a  judgment  for,  3110. 

surplus  income  from  trust  created  by  third  person,  3403. 

NE  EXEAT, 

nature  of  writ,  1296. 

NEGATIVES  PREGNANT, 
in  pleading,  846. 
sufficiency  in  answer,  948,  4105. 


£512  INDEX. 

[references  are  to  pages.] 

NEGLIGENCE  (see,  also,  "Death  by  Wrongful  Act,"  "Injuries  to  Prop- 
erty," "Personal  Injuries,"  "Due  Diligence"), 
action  as  transitory,  127. 

allegations  of  as  determining  nature  of  action,  30,  31. 
bill  of  particulars  in  action  for  personal  injuries,  867. 
when  action  is  based  on  negligence,  481,  482. 

changing  complaint  for  negligence  to  one  for  nuisance  by  amend- 
ment on  trial,  1034. 
costs  as  matter  of  right,  2914. 
additional  allowance  of  costs,  3003. 
excusable  neglect  as  ground  for  vacating  judgment,  2820. 

time  for  motion,  2826. 
body  execution  in  action  for,  3197. 
liability  of  receiver,  1644. 

NEGOTIABLE  INSTRUMENTS  (see,  also,  "Checks,"  "Bonds"), 

sufficiency  of  pleading,  854. 

who  may  sue,  384. 

time  to  sue  on  detached  coupons  of  sealed  bonds,  469. 

promissory  note  as  subject  to  execution,  3108. 

confession  of  judgment  on,  2883. 

judgment  against  part  of  defendants,  2760. 

severance  of  action  where  answer  admits  part  of  claim,  1704. 

NEWLY  DISCOVERED  EVIDENCE, 
ground  for  discontinuance,  2107. 
ground  for  setting  aside  report  of  referee,  2629. 
ground  for  new  trial,  2703. 
right  to  first  urge  on  appeal,  2686. 
motion  for  new  trial  must  be  made  at  special  term,  2727. 

NEW  MATTER, 

what  is  new  matter  constituting  defense,  953. 

NEW  PROMISE, 

taking  case  out  of  statute  of  limitations,  517  et  seq. 

NEWSPAPER   (see,  also,  "Publication"), 
paper  in  which  to  publish  summons,  778. 

NEW  TRIAL, 

after  reversal  on  appeal,  3915. 
propriety  of  motion,  2684. 

after  trial  without  a  jury,  2684. 

entry  or  collection  of  judgment  as  precluding  motion  for,  2685. 


INDEX.  4513 

[references  are  to  pages.] 

NEW  TRIAL— Cont'd. 

necessity  of  motion,  2685,  4166. 

to  save  questions  for  review,  2685. 
stipulation  for  new  trial,  2686. 
motion  as  stay  of.  proceedings,  2686. 
of  issues  framed  for  jury,  2165. 
examination  without  the  state  to  obtain  testimony  for  use  on,  1732. 

I.  Grounds  For. 

erroneous  rulings  on  the  trial,  2689. 

rulings  on  evidence,  2690. 

error  in  charge,  2692. 
verdict  against  the  weight  of  evidence,  2692,  4167. 

in  actions  for  a  penalty,  2694. 

effect  of  juries  reaching  same  conclusion,  2695,  4167. 

motion  for  nonsuit  or  directed  verdict  as  condition,  2695. 

excessive  or  inadequate  damages,  2695. 
verdict  contrary  to  law,  2698. 

where  jury  disregards  charge,  2698. 
misconduct,  2698. 

of  party,  2698. 

of  counsel,  2699. 

of  officers,  2699. 

of  spectators  at  trial,  2700. 

of  jury,  2700,  4167. 
disqualification  of  jurors,  2702. 

challenge  as  only  remedy,  2702. 
newly  discovered  evidence,  2703,  4167. 

what  is,  2703. 

when  discovered,  2704. 

diligence  in  discovering,  2705. 

materiality,  2706. 

cumulative  evidence,  2706. 
surprise,  2709,  4168. 

as  to  evidence,  2711,  4168. 

as  to  witnesses,  2712. 

mistake  of  witness,  2713. 

absence  of  counsel,  2713. 

motion  to  adjourn  or  to  withdraw  juror,  2714,  4168. 
defects  in  pleadings,  2714. 
failure  of  court  to  file  decision,  2714. 
death  of  stenographer  as  ground,  2655. 
refusal  to  postpone  trial,  2032,  2033. 

N.  Y.  Prac— 283. 


45U  INDEX. 

[eefi:i:i:\(  i:s  are  to  pages.] 
NEW  TRIAL— Cont'd. 

II.  Procedure  to  Obtain. 

motion  at  chambers,  234. 
motion  on  minutes  of  trial  judge,  2716-2721. 
where  complaint  is  dismissed,  2718. 
time  for  motion,  2718. 
notice  of  motion,  2718. 
grounds  of  motion,  2718. 

stating  grounds  in  motion,  2719. 
stenographer's  notes  treated  as  minutes  of  the  judge,  2720. 
who  may  grant,  2720. 
discretion  of  judge,  2720. 
exceptions  as  a  condition  precedent,  2720. 
motion  at  appellate  division,  2721. 
after  trial  by  jury,  2721. 

exceptions  only  can  be  ordered  heard,  2722. 
necessity  of  verdict,  2722. 
discretion  of  trial  judge,  2722. 
obtaining  hearing  by  stipulation,  2723. 
power  of  county  court,  2723. 

effect  of  hearing  of  exceptions  at  trial  term,  2723. 
ordering  hearing,  2723. 
vacating  order,  2724. 
hearing,  2725. 
after  interlocutory  judgment,  2725. 
judgment  on  denial  of  motion  for,  2779. 
motion  at  special  term, "2727. 
propriety,  2727. 
before  whom  to  move,  2729. 
time  for  motion,  2729,  4168. 
motion  papers,  2731. 

where  ground  is  newly-discovered  evidence,  2732,  4168. 
where  ground  is  surprise,  2733. 

where  ground  is  irregularity — affidavits  of  jurors,  2734. 
necessity  of  making  a  case,  2653,  2655. 
time  to  prepare  case,  2657. 
hearing,  2736. 
motion  after  trial  of  particular  issues  by  jury,  2737. 
application,  2738. 
hearing,  2738. 
appeal,  2739. 
motion  after  trial  by  referee,  2739. 

motion  for,  accompanying  motion  for  confirmation  of  referee's 
report,  2639. 


INDEX.  4515 

[references  are  to  pages.] 

NEW  TRIAL— Cont'd. 

order,  2740. 

necessity,  form,  and  contents,  2740. 

specifying  grounds  of  motion,  2740. 

entry,  2740. 

permitting  amendment,  1035. 

imposing  conditions,  2742,  4168,  4169. 

rehearing,  2745. 

exception  to  order,  2745. 

appeal,  2745,  3617,  3628,  4169. 
costs,  2935. 

amount  of  costs  for  proceedings  before,  2972. 
amount  of  costs  before,  and  for  argument,  2971. 
procedure  on  new  trial,  2746. 

NEW  YORK  CITY  (see,  also,  "First  Judicial  District"), 

court  of,  see  "City  Courts." 

place  of  trial  of  actions  against,  361. 

mode  of  serving  summons  in  action  against,  750. 

chamberlain  as  custodian  of  money  paid  into  court,  2023. 

NIGHT, 

what  is  nighttime,  696. 

NON-RESIDENCE, 

as  affecting  jurisdiction,  131. 

ground  for  allowing  summons  to  be  served  by  publication,  759. 

of  defendant  as  ground  of  attachment,  1394. 

showing  as  to  in  affidavit,  767,  1446,  1899. 

NON-RESIDENTS   (see,  also,  "Absence,"  "Residence"), 

power  to  order  to  be  brought  in  as  necessary  defendant,  423. 

as  affecting  jurisdiction,  131  et  seq. 

statute  of  limitations  as  applicable  to,  447,  448. 

liability  for  contempt,  341. 

averments  as  to,  to  obtain  order  for  service  by  publication,  767. 

place  of  trial  where  parties  are,  364. 

exemption  of  non-resident  from  service  of  summons,  731. 

service  of  papers  on  non-resident  attorney,  657. 

service  of  summons  by  artifice  on,  736. 

ground  for  allowing  service  of  summons  by  publication,  759. 

right  to  sue  as  poor  person,  1873. 

right  to  order  of  arrest,  1276. 

right  to  move  to  change  place  of  trial,  1948. 

right  to  sue  out  attachment,  1383. 


4510 


INDEX. 


[REFERENCES  are  to  pages.] 
NON-RESIDENTS— Cont'd. 

attachment  against,  1394. 
arrest  in  civil  action,  1296. 
exemptions  of  property,  1416. 
examination  of  as  party  before  trial,  1777. 
requiring  security  for  costs,  1885. 
power  to  act  as  guardian  ad  litem,  2044. 
competency  to  act  as  receiver,  1633. 

enforcement    of    execution    against    where    property    has    been    at- 
tached, 1541. 
change  of  place  of  trial  for  non-resident  witnesses,  1936. 
power  to  act  as  receiver  in  supplementary  proceedings,  3352,  3358. 
proof  where  judgment  by  default  taken  against,  2858. 
county  to  be  examined  in,  in  supplementary  proceedings,  3290. 

NON-SUIT  (see,  also,  "Taking  Case  From  Jury"), 
different  from  direction  of  verdict,  2280. 
as  a  verdict,  2101. 

on  trial  by  court  without  a  jury,  2375. 
on  trial  of  framed  issues,  2163. 
contents  of  report  of  referee,  2621. 
power  of  referee,  2592. 
judgment  on,  2756. 
judgment  as  final,  2753. 
motion  for  as  condition  to  new  trial,  2695,  2721. 

NOTE  OF  ISSUE, 

definition  and  nature  of,  1668,  4137. 

on  hearing  of  exceptions  by  appellate  division,  2726. 

in  appellate  division,  3821. 

NOTICE, 

of  pendency  of  action,  see  "Lis  Pendens." 

relating  to  appeals,  see  "Appeals." 

general  rules,  83. 

necessity  of,  646. 

actions  by  employee  against  employer,  84,  4051. 

written  or  oral,  646. 

personal  notice,  647. 

publication  of  notices,  651,  4084. 

of  appearance,  806. 

of  order,  626. 

of  judgment  before  punishment  for  disobedience,  336. 

effect  of  failure  to  give  notice  of  attorney's  lien,  298. 

necessity  of  notice  to  obtain  leave  to  sue  nunc  pro  tunc,  88. 


INDEX.  4517 

[beferexces  are  to  pages.] 

NOTICE— Cont'd. 

knowledge  of  attorney  as  notice  to  his  client,  256. 

length  of  notice  of  proceedings  in  action  in  general,  691. 

of  election  to  treat  insufficiently  verified  pleadings  as  a  nullity,  900. 

on  substitution  of  attorneys,  277,  281. 

necessity  of  entry  of  order  before  notice  thereof  can  be  given,  626. 

difference  between  ex  parte  orders  and  orders  based  on  notice,  618. 

on  vacation  of  order,  635. 

service  of  notice  with  summons,  727. 

that  summons  is  published,  where  service  is  by  publication,  777. 

service  of  notice  of  no  personal  claim  with  summons,  729. 

computation  of  time  of  publication  of  legal  notice,  697. 

acceptance  of  offer  to  allow  judgment,  1997. 

filing  of  exceptions  to  decision  or  report,  2389. 

to  produce  documentary  evidence,  1966. 

to  indemnitors  where  sued  for  wrongful  attachment,  1552. 

on  levying  on  personal  property  incapable  of  manual  delivery,  1469. 

cancellation  of  exemption  of  real  property,  1430. 

time  and  place  of  reference,  2589,  2604. 

to  terminate  reference,  2628. 

of  proceedings  to  assess  damages  where  judgment  by  default,  2853. 

to  judgment  debtor,  where  third  person  examined  in  supplementary 

proceedings,  3293. 
to  limit  time  to  prepare  case,  2657. 
of  taxation  of  costs,  3026. 
of  retaxation  of  costs,  3027. 
of  judicial  sale,  3217,  3230. 
of  execution  sale  of  personal  property,  3127. 
of  execution  sale  of  realty,  3140. 
of  exceptions,  inclusion  in  judgment  roll,  2789. 
supplementary  proceedings,  3279. 

NOTICE  OF  APPEAL, 

necessity,  3710. 

who  may  give  notice,  3710. 

form  and  contents,  3710. 

reference  to  judgment  or  order  appealed  from,  3712. 

stipulation  for  judgment  absolute,  3713. 
review  of  interlocutory  judgment  or  intermediate  order  on  appeal 
from  final  judgment  or  final  order,  3714. 

amendment  of  notice,  3716. 

effect  of  expiration  of  time  within  which  to  appeal,  3716. 

sufficiency  of  notice  of  intention  to  review,  3716. 

what  is  an  "intermediate"  order,  3716. 


-i;.i> 


INDKX. 


[REFERENCES    ARE   TO   PAGES.] 

NOTICE  OF  APPEAL^-Cont'd. 

what  is  an  order  which  "necessarily  affects  the  final  judgment," 
3716. 

successive  reviews-  of  interlocutory  judgment  or  intermediate 
order,  3717. 

signature,  3718. 
to  whom  notice  must  be  given,  3719. 

supplying  omission  to  give  notice  to  all,  3721. 
person  who  must  be  served,  3721. 

where  attorney  cannot  be  served,  3722. 
mode  of  service,  3722. 

filing  with  clerk,  2723. 
time  of  service,  3723. 
compelling  acceptance  of  service,  3723. 
amendment,  3724. 
waiver  of  objections,  3725. 
on  hearing  of  exceptions  by  appellate  division,  2723. 

NOTICE  OF  MOTION, 

order  to  show  cause,  see  "Order  to  Show  Cause." 
regular  eight  day  notice,  582. 
necessity  of  notice,  583,  4082. 
length  of  notice,  584. 
contents,  584. 

specification  of  grounds  of  the  motion,  585,  4082. 

prayer  for  relief,  585. 

naming  place  for  hearing,  586. 

designation  of  date  of  hearing,  586. 

signature,  587. 
service  of  notice,  587. 

proof  of  service,  588. 

counter  notice,  588. 

withdrawal  of  notice,  588. 
vacation  or  quashing  of  notice,  589. 
waiver  of  objections,  589. 
in  city  court  of  New  York,  589. 
service  on  Sunday,  104. 

I.  Particular  Motions  and  Other  Applications. 
for  judgment  on  pleadings,  1073. 
to  allow  amendment,  706. 

to  make  pleading  more  definite  and  certain,  1065. 
to  strike  out  pleading  as  sham,  1079. 
for  extension  of  time  to  answer,  939. 
to  enforce  attorney's  lien,  306. 


INDEX.  4519 

[references  are  to  pages.] 

NOTICE  OP  MOTION— Cont'd. 

to  compel  making  of  affidavit  or  deposition  for  purpose  of  mo- 
tion, 579. 
for  appointment  of  guardian  ad  litem,  90,  2039. 
to  be  discharged  from  liability  on  bond  or  undertaking,  684. 
for  leave  to  sue  on  judgment,  86. 

for  leave  to  sue  on  bonds  to  people  or  public  officers,  688. 
for  leave  to  amend  summons,  797. 
for  leave  to  amend  pleading,  1037. 
to  revive  on  death  of  sole  party,  2083. 
for  appointment  of  receiver,  1631,  3347. 
to  examine  witness  outside  of  state,  1736. 
for  interpleader,  1866. 
for  security  for  costs,  1898. 
to  postpone  trial,  2027. 
for  substitution  of  party,  2076. 
to  vacate  attachment,  1520. 

for  temporary  injunction,  1572. 

for  change  of  place  of  trial,  1945. 

for  struck  jury,  2056. 

to  allow  party  to  discontinue  action,  2113. 

to  increase  security  given  on. obtaining  an  arrest,  1339. 

to  dissolve  or  modify  temporary  injunction,  159b. 

to  discharge  judgment  against  bankrupt,  2835. 

to  court  for  default  judgment,  2857. 

for  leave  to  sue  on  judgment,  2841. 

for  judgment  by  default,  2858. 

for  costs,  2937. 

lo  vacate  judgment,  2823,  2827. 

to  vacate  judgment  by  confession,  2891. 

to  vacate  judgment,  2827. 

to  open  default  judgment,  2873. 

to  amend  judgment,  2812. 

for  leave  to  issue  execution,  3070,  3081. 

to  permit  execution  against  real  property  after  ten  years,  2801. 

to  quash  execution,  3189. 

for  leave  to  issue  execution  after  death  of  debtor,  3076. 

for  extra  allowance,  3023. 

for  new  trial  on  judge's  minutes,  2718. 

at  special  term,  for  new  trial,  2729. 

for  new   trial   by   appellate  division  after   interlocutory  judg- 
ment, 2726. 
to  vacate  order  that  exceptions  be  first  heard  by  appellate  di- 
vision, 2724. 


1 ;,._»,)  INDEX. 

[REFERENCES  are  to  pages.] 

NOTICE  OF  MOTION— Cont'd. 

to  stay  judicial  sale,  3226. 

to  set  aside  judicial  sale,  3231. 

to  set  aside  order  to  appear  in  supplementary  proceedings,  3302. 

to  dismiss  or  discontinue  supplementary  proceedings,  3346. 

to  obtain  order  permitting  third  person  to  pay  sheriff,  in  sup- 
plementary proceedings,  3227. 

to  require  payment  or  delivery  in  supplementary  proceedings, 
3329. 

to  extend  receivership  in  supplementary  proceedings,  3357. 

NOTICE  OF  TRIAL, 
definition,  1662. 

new  notice  on  change  in  pleadings,  1662,  4137. 
after  reversal  on  appeal,  1663. 
sufficiency,  1664. 
who  may  serve,  1664. 
to  whom  notice  to  he  given,  1665. 
service,  1665,  4137. 
waiver  of  irregularities,  1666,  4137. 
waiver  of  failure  to  give  notice,  1667. 
return  of  notice,  1667. 
effect,  1668. 

at  special  term  as  waiving  right  to  jury,  2143. 
want  of  as  excusing  plaintiff's  failure  to  proceed,  2127,  2129. 
as  waiving  right  to  change  of  place  of  trial,  1930. 
effect  as  precluding  right  to  amend  answer  as  of  course,  1023. 
necessity  of  new  notice  after  service  of  amended  pleading,  1048. 
new  notice  after  service  of  supplemental  pleadings,  1058. 
trial  by  referee,  2589. 
amount  of  costs  for  proceedings  before  notice  of  trial,  2962. 

NUISANCE, 

changing  complaint  from  negligence  to  nuisance  on  trial,  1034. 

place  of  trial,  350. 

right  of  one  to  sue  in  behalf  of  all  to  restrain  public  nuisance,  416. 

right  to  jury  trial,  2140. 

costs  as  matter  of  right,  in  action  to  abate,  2910,  2926. 

basis  of  computing  extra  allowance  in  action  to  restrain,  3014. 

NUMBERS, 

how  set  out  in  pleadings,  821. 

NUNC  PRO  TUNC, 

granting  leave  to  sue  nunc  pro  tunc,  88. 
amendment  of  verification  of  pleading,  900. 


INDEX.  4521 

[REFERENCES   ARE   TO   PAGES.] 

NUCE  PRO  TUNE— Cont'd. 

amendment  of  orders  nunc  pro  tunc,  634. 

operativeness  of  amendment  as  against  third  person,  705. 

docketing  judgment,  2800. 

amending  docket  of  judgment,  2792. 

amendment  of  judgment  roll,  2790. 

entry  of  judgment,  2785. 

amendment  of  judgment,  2814. 

amendment  of  statement  confessing  judgment,  2886. 

leave  to  issue  execution,  3071. 

amendment  of  execution,  3188. 

substitution  of  copy  for  lost  execution,  3088. 

allowance  of  appeal,  3707. 

o. 

OATHS  (see,  also,  "Affidavits"), 
manner  of  administering,  564. 

general  power  of  courts  of  record  to  administer,  118. 
affidavit  as  synonymous  with,  535. 
of  party  on  physical  examination  before  trial,  1822. 
administering  to  jury,  2200. 
administering   by   commissioner  to  take   deposition   outside  state, 

1755. 
of  referee,  2588,  2605. 

waiver,  2588,  2589. 
administration  by  referee  to  witnesses,  2594. 
of  referee  in  supplementary  proceedings,  3314. 

waiver,  3315. 
administering  to  witnesses  in  supplementary  proceedings,  3317. 
witness  in  supplementary  proceedings,  3321. 

OBJECT  OF  ACTION, 

definition,  53. 
OBJECTIONS   (see,  also,  "Exceptions,"  "Waiver"), 
modes  of  objecting  to  evidence,  2264. 
objections  to  questions,  2264. 

time,  2265,  4160. 

sufficiency,  2265,  4160. 

scope,  2269,  4160. 

repetition,  2269,  4160. 

waiver,  2270,  4160. 

ruling  on  objections,  and  exceptions,  2271,  4160. 
motion  to  strike  out  evidence,  2271,  4160. 


4  ;,•_>•>  INDEX. 

[references  are  to  pages.] 

OBJECTIONS— Cont'd. 

instructions  to  disregard  evidence,  2275. 

effect  of  striking  out  or  charging  to  disregard  evidence,  2276. 

to  evidence  as  condition  of  striking  out,  2273. 

to  remarks  in  opening  speech  to  jury,  2209. 

to  closing  argument  before  jury,  2307. 

sufficiency  of  objections  to  reading  of  deposition,  1768. 

failure  to  object  as  waiver  to  right  to  jury  trial,  2148. 

liability  of  guardian  ad  litem  for  failure  to  raise,  2051. 

on  reference  to  take  an  account,  2609. 

OCCUPATION, 

of  land,  see  "Adverse  Possession." 

OFFER, 

to  liquidate  damages,  2003. 

I.  Offer  to  alloiv  judgment. 

who  may  make,  1990. 

plaintiff,  1991. 
offer,  1991. 

time  for  making,  1992. 

scope,  1992. 

signature,  1993. 

service,  1994. 

amendment,  1994. 

withdrawal,  1995. 

successive  offers,  1995. 
acceptance,  1996,  4152. 
refusal,  1997. 

what  is  more  favorable  judgment,  1998,  4153. 

where  judgment  is  for  less  than  fifty  dollars,  2001. 
on  appeal  from  a  justice  of  the  peace,  2002. 
acceptance  precluding  right  to  continue  after  severance,  1705. 
as  precluding  objection  to  liability  for  costs,  2905. 
additional  allowance  of  costs  on  accepting  or  refusing,  3007. 

II.  Offers  of  Proof. 

kinds,  2228. 

necessity,  2229. 

sufficiency,  2229. 

offer  in  presence  of  jury,  2230. 

OFFICERS    (see,    also,    "Clerks    of   Court,"    "Sheriffs,"    "Attorneys    at 
Law,"  "Governor"), 
election,  see  "Election  of  Officers." 
who  are  public  officers,  358. 


index.  4523 

[references  are  to  pages.] 

OFFICERS— Cont'd. 

of  supreme  court,  163,  164. 

of  court  of  appeals,  149,  150. 

attorney  as  officer  of  court,  240. 

receiver  as  officer  of  court,  3376. 

Interpreter  as  an  officer,  315. 

removal  by  supreme  court,  163. 

place  of  trial  of  action  against,  356. 

time  within  which  to  bring  action  against,  478,  483. 

actions  on  bonds  to  public  officers,  688. 

acts  of  as  civil  contempt,  325,  328,  331. 

excluding  officer  from  theatre  as  civil  contempt,  329. 

mistakes  of  as  amendable,  705. 

mistake  in  name  of,  as  cured  by  verdict,  report  or  decision,  703. 

default  or  negligence  of,  as  cured  by  verdict,  report  or  decision,. 

703. 
arrest  in  actions  against,  1282,  1284. 
exemption  from  liability  to  arrest,  1308. 
death  or  termination  of  office  as  abating  action,  2063,  2078. 
substitution  of  indemnitors  in  action  against,  1548. 
acts  as  ground  of  attachment,  1404. 
changing  place  of  trial  in  action  against,  1939. 
order  to  produce  on  trial  books  or  papers  in  custody  of,  1972. 
power  to  confess  judgment,  2880. 
power  to  purchase  at  judicial  sale,  3224. 
misconduct  as  ground  for  new  trial,  2699. 
double  costs  in  actions  against,  2991. 
costs  in  action  against  school  officers,  2938. 
additional  allowance  in  action  to  remove,  or  to  try  title,  3011. 
body  execution  against,  for  misconduct  or  neglect,  3198. 
power  to  appeal,  3656. 

OMISSIONS   (see,  also,  "Irregularities,"  "Mistakes,"  "Amendments"),, 
in  judgment  as  amendable,  2809. 
in  docketing  judgments,  effect  of,  2792. 

OPEN  AND  CLOSE  (see,  also,  "Opening  Address  to  Jury"), 

right  to  open  and  close,  2203,  4158. 
number  of  opening  arguments,  2207. 
where  there  are  several  parties,  2207. 
effect  of  error  in  denying  right  to  open,  2207. 

OPEN  COMMISSION, 
when  granted,  1749. 


I ;,._.[  INDEX. 

[REFERENCES  are  to  pages.] 

OPENING  ADDRESS  TO  JURY, 

scope  of  opening  statements,  2208. 

reading  pleadings,  2209. 

use  of  map,  2209. 
objections,  2209. 

effect  of  improper  statements,  2209. 
as  basis  of  computing  additional  allowance  of  costs,  3010. 

OPINIONS, 

reading  to  jury  as  part  of  charge,  2325. 
charging  judge's  opinion  on  facts,  2317. 
ground  of  challenge  to  juror,  2194. 
incorporation  in  case,  2662,  2673. 
part  of  record  on  appeal,  3802. 

ORDER  OF  PROOF, 

dependent  facts,  2224. 

evidence  on  principal  issue,  2224. 

anticipatory  rebuttal,  2224. 

admitting  evidence  conditionally  on  promise  to  connect,  2224. 

proving  case  on  cross-examination,  2225. 

rebuttal,  2225. 

surrebuttal,  2226. 

reopening  case,  2227. 

ORDERS, 

I.  Nature,  Rendition  and  Enforcement. 

difference  between  order  and  judgment,  617. 
kinds  of  orders,  618. 
formal  requisites,  619. 

caption,  619,  4083. 

date,  619. 

signature,  620. 

direction  to  enter,  620. 
contents,  620,  4083. 

specification  of  motion  papers,  620. 

admissions,  consents,  etc.,  not  reduced  to  writing,  621. 

ordering  part,  621. 

terms  and  conditions,  621. 

payment  of  costs,  622. 

contents  of  order  granted  on  petition,  622. 
settlement  of  order  and  entry,  623. 

necessity,  624. 

one  or  more  orders,  625. 


INDEX.  4525, 

[references  are  to  pages.] 
ORDERS— Cont'd. 

where  order  should  be  entered,  625. 

as  of  what  term,  625. 

effect  of  failure  to  enter,  626. 
service  and  notice,  626,  4084. 
enrollment  and  docketing,  627. 
waiver  of  objections,  628. 
order  as  stay  of  proceedings,  628. 
enforcement  of  order,  629. 

by  contempt  proceedings,  629. 
collateral  attack,  629. 
appeal,  630. 

order  as  sufficient  decision  on  demurrer,  1014. 
disobedience  as  civil  contempt,  327. 

definiteness  that  disobedience  thereto  be  contempt,  334. 
reversal  or  dissolution  as  precluding  punishment  for  disobedi- 
ence, 337,  338. 
inability  to  comply  with  as  excusing  disobedience,  339,  340. 
form  where  made  by  judge  out  of  court,  239. 
power  of  county  judge  to  make  or  vacate  order,  189. 
power  of  judge  out  of  court  to  vacate  order  made  out  of  court,. 

237. 
service  on  holiday,  106. 

II.  Modes  of  Raising  Objections  to  Orders. 

enumeration  of  remedies  and  differences  between  them,  631. 
review  of  order  made  by  judge  of  another  court,  632. 
resettlement  and  modification  of  order,  632. 

consent  order,   633. 
amendments,  633. 

nunc  pro  tunc,  634. 
vacation  of  order,  635. 
renewal  of  motion  and  rehearing,  639. 
appeal,  see  "Appeal." 

III.  Vacation  of  Order. 
power  of  judge,  635. 
opening  order  by  default,  635. 
motion  to  vacate  or  appeal,  634,  3594. 
grounds,  636. 

"mistake,  inadvertence,  surprise  or  excusable  neglect,"  637. 
the  motion,  638. 

who  may  move,  638. 

time  to  move,  638. 

withdrawal  of  appeal  as  condition,  638. 
effect  of  vacation,  639. 


,;,._,,;  INDEX. 

[REFERENCES  are  to  pages.] 

ORDERS— Cont'd. 

IV.  Renewal  of  Motion  and  Rehearing. 

renewal  as  dependent  on  leave  of  court,  639,  4084. 

order  by  default,  641. 
renewal  by  successful  party,  641. 
leave  to  renew,  641. 

discretion  of  court,  642,  4084. 

proceedings  to  obtain,  643,  4084. 

manner  of  granting,  644. 

effect,  644. 
facts  to  be  shown  on  renewal,  644,  4084. 

appeal  and  renewal  of  motion  as  concurrent  remedies,  644,  4084. 
effect  of  failure  to  obtain  leave,  645. 

V.  Particular  Orders. 

requiring  pleading  to  be  made  more  definite  and  certain,  1065. 
allowing  amendment,  707. 
requiring  reply,  988. 

directing  substituted  service  of  summons,  754. 
bringing  in  new  parties,  426. 

on  application  for  leave  to  amend  pleading,  1042. 
for  service  of  summons  by  publication,  770. 
on  allowing  party  to  intervene,  433,  434. 
on  application  for  leave  to  file  supplemental  pleading,  1058. 
for  bill  of  particulars,  876. 
for  more  specific  bill  of  particulars,  879. 
on  substitution  of  attorneys,  275. 

compelling  making  of  affidavit  or  deposition  for  purpose  of  mo- 
tion, 581. 
allowing  party  to  discontinue  action,  2114. 
change  of  place  of  trial,  1961. 
consolidation  of  actions,  1700. 
continuing  action  in  name  of  survivors,  2094. 
substituting  representatives  of  deceased  co-party,  2097. 
directing  examination  of  witness  outside  of  state,  1738. 
directing  deposition  to  be  taken  without  the  state,  1729. 
discharging  attachment,  1510. 
discovery  and  inspection,  1852. 

dismissing  complaint  for  want  of  prosecution,  2130. 
examination  of  party  before  trial,  1803. 
examination  of  person  refusing  certificate  in  aid  of  attachment, 

1499. 
for  physical  examination  of  party,  1822. 
for  struck  jury,  2056. 
for  trial  of  issues,  1672. 


index.  4527 

[references  are  to  pages.] 
ORDERS— Cont'd. 

framing  issues  for  trial  by  jury,  2157,  2162. 
guardian  ad  litem  for  defendant,  2048. 
leave  to  sue  as  poor  person,  1878. 
of  arrest,  1332. 
of  interpleader,  1868. 
postponing  trial,  2031. 
revival  on  death  of  sole  party,  2086. 
security  for  costs,  1901. 
staying  proceedings,  1922. 
substituting  party,  2078. 

substituting  indemnitors  in  place  of  officer  suing,  1551. 
temporary  injunction,  1583. 
to  produce  papers  on  trial,  1970. 
vacating  attachment,  1527. 
vacating  temporary  injunction,  1600. 
reference,  2577. 
reference  by  consent,  2554. 
additional  allowance,  3024. 
amending  judgment,  2813. 
appointment  of  receiver,  3353. 

directing  issues  to  be  tried  in  action  against  corporation,  2850. 
leave  to  issue  execution  after  death  of  debtor,  3078. 
new  trial,  2740. 
retaxation  of  costs,  3037. 
vacating  judgment,  2830. 
vacating  judgment  by  confession,  2891. 
vacating  judicial  sale,  3232. 
for  resale  under  judgment,  3241. 

for  payment  or  delivery  of  property,  in  supplementary  proceed- 
ings, 3325  et  seq- 
basis  for  supplementary  proceedings,  3274. 
enforcement  by  execution,  3060. 

ORDER  TO  SHOW  CAUSE, 

power  of  judge  out  of  court,  238. 

power  of  county  judge,  188,  189. 

who  may  make,  591,  4082. 

affidavit,  591,  4082. 

contents,  592. 

where  returnable,  593. 

service,  594. 

stay  of  proceedings,  594. 

notice  on  overruling  objections  to  order,  595. 

on  moving  to  make  pleading  more  definite  and  certain,  1065. 


4528  INDEX. 

[references  are  to  pages.] 
ORDER  TO  SHOW  CAUSE— Cont'd, 
on  failure  to  obey  subpoena,  19S1. 
on  petition  for  discovery  and  inspection,  1845. 
order  as  appealable,  3652. 

OWNERSHIP, 

allegation  of  as  conclusion  of  law,  828. 


PAPERS  (see,  also,  "Motion  Papers"), 
filing  of,  see  "Filing." 
folioing,  see  "Folioing." 
service  of,  see  "Service." 
form  and  requisites,  647. 
sufficiency,  648. 
indorsement  or  subscription  of,  649. 

effect  of  failure  to  indorse  or  of  improper  indorsement,  650. 
filing  of,  650. 

rigbt  of  attorney  to  retain  on  substitution  of  another,  279. 
on  submission  of  controversy,  34. 
notice  to  produce  at  trial,  1966  et  seq. 
admission  of  genuineness,  1975. 
what  may  be  taken  to  jury  room,  2350. 
affidavit  of  disbursement  for  copy  of,  3030. 

PARCELS, 

sale  in,  3143,  3223,  3230. 

PARENT  AND  CHILD, 

abatement  of  action  by  parent  for  injuries  to  child,  2069. 

PARTIES  (see,  also,  "Real  Party  in  Interest"), 
plaintiffs,  see  "Plaintiffs." 
defendants,  see  "Defendants." 
joinder,  see  "Joinder  of  Parties." 
intervention,  see  "Intervention." 
physical  examination  before  trial,  1817  et  seq. 
definition,  369,  1776. 
common  law  rules,  370. 
equity  rules,  375. 
bringing  in  new  parties,  418. 
necessary  parties,  419. 

test  as  to  right  to  bring  in  a  new  defendant,  423. 
duty  of  court  to  bring  in  new  parties  as  mandatory,  423,  4070. 

who  may  be  brought  in  as  new  party,  423. 

who  may  move,  424. 

effect  of  failure  of  parties  to  move,  424. 


INDEX.  4529 

[references  are  to  pages.] 
PARTIES— Cont'd. 

grounds  for  refusing,  424. 

the  motion,  425,  4071. 

the  order  and  proceedings  thereafter,  426,  4071. 

conditions  of  order,  427. 
right  of  party  to  act  as  his  own  attorney,  240. 
necessity  that  causes  of  action  joined  affect  all  parties,  72-75. 
to  submission  of  controversy,  34. 

to  summary  proceedings  by  client  against  attorney,  287. 
names  of  in  summons,  715. 
name  of  in  title  of  complaint,  919. 
when  exempt  from  service  of  summons,  730. 
necessity  of  pleading  misnomer  as  a  defense,  957. 
sufficiency  of  answer  setting  up  misnomer,  961. 
sufficiency  of  answer  setting  up  defect  of  parties,  959. 
defect  of  parties  as  ground  of  demurrer,  998. 
change  by  amendment  of  summons,  795. 
amendment  as  to  parties  on  the  trial,  1030. 
amendment  after  trial  to  change  name  of  party,  1036. 
preventing  from  attending  or  testifying  as  civil  contempt,  328. 
necessity  of  pleading  misjoinder  as  a  defense,  957. 
waiver  of  pleading  misjoinder  as  a  defense,  957. 
waiver  of  defect  of,  or  misjoinder  of,  parties,  1091. 
identity  in  order  that  another  action  pending  be  matter  in  abate- 
ment, 49. 
exemption  from  arrest  while  attending  trial,  1308. 
consolidation  of  actions  as  dependent  on  parties,  1692. 
defect  of  as  ground  for  denying  temporary  injunction,  1565. 
joinder  of  interpleading  claimant  instead  of  substitution,  1870. 
manner  of  bringing  in  new  parties  on  death,  etc.,  of  party,  2098. 
misjoinder  or  non-joinder  as  ground  for  vacating  injunction,  1595. 
procedure   where  summons  served   on  only  part  severally  liable, 

1707. 
severance  as  to  in  verdict,  2362. 
to  action  on  injunction  undertaking,  1610. 
for  or  against  whom  judgment  may  be  rendered,  2759. 
names  of  in  judgment,  2757. 

adding,  on  denying  motion  to  vacate  judgment,  2830. 
misconduct  as  ground  for  new  trial,  2698. 
new  trial  where  testimony  in  conflict  with  disinterested  witnesses, 

2693,  2694. 
new  trial  as  to  co-party,  2740. 
witness  fees  as  disbursements,  2980. 

nonjoinder  of  as  relieving  purchaser  at  judicial  sale,  3236. 
in  creditor's  suit,  3411. 
N.  Y.  Prac— 284. 


4530  INDEX- 

[references  are  to  pages.] 

PARTITION, 

special  proceeding,  17. 

place  of  trial,  349. 

right  to  intervene  in  action,  432- 

requiring  bill  of  particulars,  869. 

application  for  guardian  ad  litem  for  plaintiff,  89. 

leave  to  sue  in  action  by  infant  for  partition,  87. 

whether  one  or  more  causes  of  action  is  stated,  60,  61. 

causes  of  action  as  arising  out  of  the  same  transaction  as  action 

to  establish  debt,  69. 
abatement  by  death  of  party,  2069. 
appointment  of  receiver,  1625. 

guardian  ad  litem  for  infant  defendant,  2041,  2046,  2048. 
preference  on  calendar  of  action  for,  1677. 
judgment  by  default,  2763. 
costs  as  matter  of  right,  2910,  2926. 
additional  allowances,  2995. 
additional  allowance  of  costs  as  discretionary,  3002,  3006. 

basis  of  computation,  3012,  3018. 

amount  of,  3019. 
more  than  one  extra  allowance  of  costs,  3001. 

PARTNERSHIP, 

law  partnerships,  241. 

power  of  partner  to  submit  controversy,  34. 
joinder  of  partners  in  action  against  innkeeper,  403. 
service  of  papers  on  firm  of  attorneys,  656. 
pleading,  825. 

place  of  trial  of  action  for  accounting,  353. 

time  to  bring  action  on  partnership  agreement  under  seal,  469. 
part  payment  to  take  case  out  of  statute  of  limitations,  529,  530. 
acknowledgment  or  new  promise  to  take  case  out  of  statute  of  lim- 
itations, 519. 
authority  of  partner  to  offer  to  allow  judgment  before  trial,  1990. 

effect,  1999. 

application  by  partners  to  discharge  attachment,  1508. 

acts  of  partner,  attachment  of  property  of  co-partner,  1385. 

arrest  of  partner  by  his  co-partner,  1305. 

right  to  arrest  partner  for  act  of  co-partner,  1304. 

arrest  in  action  based  on  fraudulent  conveyance,  1293. 

continuance  of  action  on  death  of  co-partner,  2093. 

discovery  and  inspection  in  actions  between  partners,  1829,  1830. 

duty  to  give  certificate  on  demand  of  attachment  officer,  1499. 

examination  of  partner  as  party  before  trial,  1783. 

property  which  may  be  attached,  1407. 


INDEX.  4.33  i 

[references  are  to  pages.] 
PARTNERSHIP— Cont'd, 
residence  of  firm,  1395. 

right  of  one  partner  to  make  affidavit  for  attachment,  1432. 
transfer  of  interest  to  co-partner  as  ground  of  attachment,  1400. 
verification  of  petition  by  all  of  partners,  1846. 
effect  of  opening  judgment  against,  2831. 
discharge  of  judgment  where  partner  is  bankrupt,  2836. 
costs  in  action  to  charge  estate  of  partner  with  firm  debts,  2926. 
basis  of  computing  extra  allowance  in  action  for  accounting,  3017. 
sale  of  partnership  property  on  execution  against  partner,  3114. 
release  of  firm  property  levied  on,  3122. 

priority  between  executions  against  firm  and  against  partner,  3103. 
creditor's  suit  against,  without  exhausting  remedy  at  law  against 
all  of  partners,  3392,  3393. 

PATENTS, 

jurisdiction  of  actions  as  between  state  and  federal  courts,  140. 
subject  to  supplementary  proceedings,  3261. 
reached  by  creditor's  suit,  3406. 

PAUPERS  (see  "Poor  Persons"). 

PAYMENT, 

implied  power  of  attorney  to  receive,  272. 

presumption  of  as  distinguished  from  statute  of  limitations,  445, 
446. 

necessity  of  pleading  as  defense,  954,  4103. 

admissibility  of  evidence  as  to,  under  general  denial,  947. 

part  payment  as  taking  case  out  of  statute  of  limitations,  525. 

by  receiver,  1649. 

effect  of  payment  under  process  of  attachment,  1480. 

levy  under  attachment  as  discharging  debt,  1479. 

part  payment  as  destroying  right  to  order  of  arrest,  1276. 

of  default  judgment  as  bar  to  motion  to  open,  2871. 

of  witness  fees  as  condition  to  taxing  as  disbursements,  2983. 

bid  at  execution  sale,  3131. 

to  redeem  from  execution  sale,  3172. 

effect  of,  by  third  person,  in  supplementary  proceedings,  3327. 

application  by  receiver  in  supplementary  proceedings,  3376,  3377. 

making,  or  accepting  as  waiving  right  to  appeal,  3666. 

PAYMENT  INTO  COURT, 

subject  to  attorney's  lien,  296. 
effect,  2015. 
procedure,  2015. 
administration  of  funds,  2016. 


4532  index. 

[references  are  to  pages.] 
PAYMENT  INTO  COURT— Cont'd. 

to  whom  to  be  paid,  2017. 

deposit,  2018. 

transfer  or  reinvestment,  2018. 
title,  2019. 
rights  and  duties  of  custodian,  2019. 

repayment  of  deposit,  2020,  4153. 
death,  removal,  or  expiration  of  office  of  county  treasurer,  2023. 
chamberlain  of  New  York  City,  2023. 
after  tender,  2008. 

in  lieu  of  undertaking  on  granting  injunction,  1582. 
supplementary  proceedings  to  reach,  3257. 
allowance  of,  by  application  at  foot  of  decree,  2812. 
as  condition  of  awarding  new  trial,  2744. 
judgment  requiring,  as  enforcible  by  contempt  proceedings,  3062. 

PENALTIES  (see,  also,  "Fines,"  "Forfeitures"), 
time  within  which  to  bring  action  for,  479,  483. 
indorsement  on  summons  in  penal  actions,  722. 
place  of  trial  of  action  to  recover,  355. 
action  to  recover  as  ex  delicto  or  ex  contractu,  32. 
sufficiency  of  pleading  in  action  on  penal  statute,  850. 
cause  of  action  for  statutory  penalty  as  inconsistent  with  one  for 

injunction  against  the  offense,  72. 
power  to  join  causes  of  action  for  penalties   incurred  under  the 

Fishery,  Game  and  Forest  law,  70. 
disobedience  of  order  requiring  bill  of  particulars,  880. 
for  failure  to  obey  subpoena,  1979,  1984. 
right  to  order  of  arrest  in  action  to  recover  penalties,  1279. 
body  execution  in  action  to  recover,  3197. 
new  trial  because  verdict  against  weight  of  evidence,  2694. 
costs  as  matter  of  right  in  action  to  recover,  2919. 
for  clerk's  neglect  to  docket  judgment,  2795. 

PENDENCY  OF  ANOTHER  ACTION  (see  "Another  Action  Pending"). 

PENSIONS, 

judgment  as  lien  on,  2797. 
as  exempt,  1423. 

PEOPLE, 

actions  by,  see  "Action  by  People." 

actions  on  bonds  to  people  or  public  officers,  688. 

execution  against,  3058. 

costs  as  matter  of  right  where  people  a  party,  2914. 


index.  4533 

[references  are  to  pages.] 

PEREMPTORY  CHALLENGES, 
to  jury,  2191. 

PERISHABLE  PROPERTY, 

sale  by  sheriff,  1478. 

PERJURY, 

ground  for  new  trial,  2708. 

in  supplementary  proceedings,  as  a  contempt,  3337. 

PERPETUATING  TESTIMONY, 

bill  to  perpetuate,  1718,  4139. 

who  may  be  examined,  1720. 

grounds,  1721,  4139. 

proceeding  by  affidavit  or  on  stipulation,  1722. 

the  application,  1722,  4139. 

time,  1723,  4139. 

the  affidavit,  1723.  * 

procedure  in  part  the  same  as  examination  of  party,  1726. 
use  as  evidence,  1727,  4139. 

PERSONAL  INJURIES   (see,  also,  "Negligence,"  "Death  by  Wrongful 
Act"), 
successive  actions,  55. 

injury  to  property  and  to  person  as  separate  causes  of  action,  56. 
power  to  join  causes  of  action  for  personal  injuries,  63. 
time  within  which  to  bring  action,  475,  481,  482. 
pleading  mitigating  circumstances,  963. 
place  of  trial  of  action,  361. 

when  limitations  run  against  continuing  or  recurring  causes  of  ac- 
tion, 487,  488. 
examination  of  party  before  trial  in  actions  for,  1782. 
physical  examination  of  party  before  trial,  1822. 
order  of  arrest  in  actions  for,  1279. 
abatement  of  action  on  death  of  party,  2066. 
abatement  of  action  by  death  after  verdict,  2102. 
tender  of  damages  before  trial,  2006. 

prejudice  against  action  as  ground  of  challenge  to  juror,  2195. 
right  to  attach  property  in  action  for,  1392. 

PERSONAL  PROPERTY  (see,  also,  "Chattels"), 

sale  on  execution,  see  "Execution  against  Property." 

when  title  vested  in  receiver  in  supplementary  proceedings,  3361. 

creditor's  suit  to  set  aside  fraudulent  conveyance,  3386. 


4534:  INDEX. 

[references  are  to  tages.] 
PETITION, 

difference  between  motion  and,  570. 

for  guardian  ad  litem,  89. 

for  leave  to  issue  execution  against  executor  or  administrator,  3082. 

for  leave  to  use  as  a  poor  person,  1874. 

for  discovery  and  inspection,  1845. 

to  take  testimony  within  state  for  use  without  state,  1771. 

PHYSICAL  EXAMINATION  OF  PARTY, 
prior  to  Code  provision  therefor,  1817. 
Code  provisions,  1818,  4144. 
examination  as  matter  of  right,  1819. 
independent  of  oral  examination,  1820,  4145. 
the  application,  1820. 

to  whom  to  he  made,  1820. 
counter-affidavits,  1821. 
order,  1922. 
examination,  1822. 
second  examination,  1823. 

PHYSICIANS  AND  SURGEONS', 

election  between  remedies  in  case  of  malpractice,  43,  44. 
time  within  which  to  bring  action  for  malpractice,  482. 
action  for  malpractice  abated  by  death  of  party,  2066. 
examination  of  party  before  trial,  1822. 
reference  in  actions  to  recover  for  services,  2565. 

PLACE, 

necessity  of  stating  definitely  in  pleadings,  848. 
of  service  of  summons,  734. 

PLACE  OF  BUSINESS, 

county  of,  to  which  execution  to  be  issued,  3276. 

PLACE  OF  TRIAL, 

history  of  the  practice  relating  to  venue,  343. 

difference  between  "local"  and  "transitory"  actions,  343. 

change  of  venue,  344. 
as  governed  by  location  of  "subject  of  action,"  348,  4067. 

ejectment,  349. 

partition,  349. 

action  for  dower,  349. 

foreclosure  suits,  349. 

action  to  quiet  title,  350. 

action  for  waste,  350. 


index.  4535 

[references  are  to  pages.] 

PLACE  OF  TRIAL— Cont'd. 

action  for  a  nuisance,  350. 

action  to  compel  a  conveyance  of  real  property,  350. 

miscellaneous  actions,  351,  4067. 
as  governed  by  place  where  cause  of  action  arose,  354. 

action  for  penalty  or  forfeiture,  355,  4067,  4068. 

action  against  public  officer,  356. 

action  to  recover  chattel,  359. 
as  governed  by  residence  of  parties,  360,  4068. 

residence  vs.  domicile,  361,  4068. 

effect  of  different  residences  of  co-parties,  362,  4068. 

residence  of  corporation,  362,  4068. 

residence  of  unincorporated  association,  363. 

actions  relating  to  real  property  without  the  state,  363. 

actions  against  national  banks,  364. 

action  by  the  people,  364. 

action  by  wife  for  divorce,  364. 
place  of  trial  where  both  parties  are  non-residents,  364. 
place  of  trial  of  issue  of  law,  364. 
changing  by  amendment  of  course,  1024. 
name  in  summons  of  county  in  which  trial  is  desired,  718. 
transfer  of  actions  to  supreme  court,  161. 

necessity  that  causes  of  action  joined  be  triable  in  same  county,  76. 
place  for  making  motion,  595. 
place  of  hearing  motion,  607. 

PLAINTIFF, 

joinder,  see  "Joinder  of  Parties." 
real  party  in  interest,  375,  4069. 
assignee,  376,  4069. 

assignability  of  things  in  action,  377. 

where  assignment  is  conditional  or  colorable,  379. 

where  assignment  is  of  only  a  part,  379. 

right  of  assignor  to  sue,  379. 
third  person  for  whose  benefit  a  contract  is  made,  380. 

limitations  of  rule,  382. 
in  actions  on  negotiable  instruments,  384. 
in  actions  ex  delicto  in  general,  385. 
in  actions  against  a  common  carrier,  385. 
principals,  386. 
attorneys,  387. 
depositary,  387. 
objection  as  defense,  387. 
exceptions  to  real  party  in  interest  rule,  387. 


4536  INDEX. 

[references  are  to  pages.] 
PLAINTIFF— Cont'd. 

trustee  of  express  trust,  387,  40G9. 

agents,  389. 

assignee  in  trust,  390. 

banker,  390. 

attorney,  390. 

the  people,  390. 

in  insurance  policy,  391,  4070. 

beneficiary  may  also  sue,  391. 
executors  and  administrators,  391. 
persons  expressly  authorized  by  statute,  392. 
right  to  serve  summons,  734. 

showing  in  complaint  as  to  reason  for  not  joining  as,  925. 
sufficiency  of  answer  setting  up  plaintiff's  disability  to  sue,  960. 
necessity  of  pleading  disability  to  sue  as  a  defense,  957. 
waiver  of  objection  that  plaintiff  has  not  legal   capacity  to  sue, 

1090. 
misjoinder  of  plaintiffs  as  ground  of  demurrer,  998. 
want  of  legal  capacity  to  sue  as  ground  of  demurrer,  997. 
in  creditor's  suit,  3411. 

PLEADING  (see,  also,  "Supplemental  Pleadings,"  "Demurrers,"  "Vari- 
ance," "Verification"), 

complaint,  see  "Complaint." 

answer,  see  "Answer." 

reply,  see  "Reply." 

construction,  see  "Construction  of  Pleadings." 

sham,  see  "Sham  Pleadings." 

frivolousness,  see  "Frivolous  Pleadings." 

definition,  820. 

common  law,  equity  and  code  pleading,  820. 

abbreviation,  number,  folios,  endorsements,  etc.,  821. 

parts  of,  822. 

subscription  of,  822. 
surplusage,    irrelevancy,    redundant   and    scandalous    matter,    833, 

4092,  4125. 
pleading  evidence,  825,  4090. 
pleading  facts  necessarily  implied,  826. 
pleading  facts  which  the  law  presumes,  827. 
pleading  conclusions  of  law,  828,  4091. 
facts  of  which  courts  take  judicial  notice,  830. 
plain,  ordinary  and  concise  language,  836,  4092. 
duplicity,  838. 
definiteness  and  certainty,  839,  847,  4092. 


INDEX.  4537 

[references  are  to  pages.] 

PLEADING — Cont'd. 

argumentativeness,  842. 

ambiguity,  842. 

alternative  statements,  842,  4092. 

inconsistency,  844. 

recitals  of  facts,  845. 

hypothetical  statements,  845. 

negatives  pregnant,  846. 

averments  on  information  and  belief,  846. 

conclusions  of  law,  847. 
withdrawal  of,  885,  4101. 
service  of,  881. 
returning,  pleadings,  915. 
abolishment  of  forms  of,  820. 

defects  as  cured  by  verdict,  report  or  decision,  703. 
bill  of  particulars  construed  as  part  of,  880. 
judgment  on  pleadings  at  trial,  1084,  4127. 
conformity  of  instructions  to,  2326. 
examination  before  trial  to  frame  pleading,  1780. 
new  notice  of  trial  on  change  in,  1662. 
reading  to  jury,  2209. 

reference  to  in  summing  up  by  counsel  on  trial  by  jury,  2305. 
power  of  referee  to  order  judgment  on  the  pleadings,  2593. 
including  in  judgment  roll,  2787. 
defects  in  as  ground  for  a  new  trial,  2714. 
judgment  on,  for  frivolousness,  as  final,  2753. 
as  evidence  of  subject-matter  involved,  3024. 

PLEDGES, 

right  to  attach  pledged  property,  1414. 

right  to  attach  interest  of  pledgor,  1411. 

mode  of  attaching  interest  of  pledgor,  1468. 

disposition  of  property  by  pledgor  as  ground  of  attachment,  1400. 

interest  of  pledgor  as  leviable,  3112. 

PLURIES  EXECUTION, 

what  is,  3087. 
POLICEMEN, 

exemption  from  arrest,  1313. 

POLICY, 

of  insurance,  see  "Insurance." 

POLITICAL  FACTS, 

necessity  of  pleading,  831. 


453S  INDEX. 

[references  are  to  pages.] 
POOR  PERSONS, 

who  may  sue  or  defend  as  a  poor  person,  1873. 

financial  condition  of  party,  1873,  4148. 
application,  1874,  4148. 
hearing,  1877. 
order,  1878,  4148. 

effect,  1879. 

vacation,  1880. 
financial  responsibility  of  guardian  at  litem,  2043. 
right  of  plaintiff  to  costs  as  of  course,  2918. 
right  to  extra  allowance  of  costs,  3000. 
application  to  compel  support  of  as  special  proceeding,  17. 

POSSESSION, 

necessity  to  support  attorney's  lien,  294. 

taking  property  into  actual  possession  on  attachment,  1466. 

claim  of  possession  as  claim  of  title,  2909. 

right  of  execution  purchaser  to,  3150. 

inability  to  obtain  as  relieving  purchaser  at  judicial  sale,  3238. 

how  obtained  by  purchaser  at  judicial  sale,  3245. 

POSTING, 

notice  of  execution  sale,  3127,  3141. 
notice  of  judicial  sale,  3217. 

POSTMASTER, 

jurisdiction  of  action  against,  144. 

POSTPONEMENT  (see,  also,  "Continuance"), 

grounds,  2024,  4153. 

absence  or  ill  health  of  party,  2025. 

absence  or  ill  health  of  counsel,  2025. 

absence  of  witness,  2026,  4154. 
procedure,  2027. 

time  for  motion,  2028. 

motion  papers,  2028. 

opposing  the  motion,  2030. 

hearing,  2031. 

order,  2031,  4154- 
procedure  where  motion  is  denied,  2032. 
procedure  where  motion  is  granted,  2034. 

subsequent  proceedings  on  trial,  2035. 
withdrawal  of  juror,  2277. 
from  Saturday  until  Monday,  104. 

continuance  of  proceedings  before  another  judge  of  the  same  court, 
227,  228. 


INDEX.  4539- 

[references  are  to  pages.] 

POSTPONEMENT— Cont'd, 
of  term  of  court,  110-112. 

on  permitting  amendment  of  pleading  during  the  trial,  1042. 
extension  of  time  in  which  to  apply  for  continuance,  694. 
as  releasing  sureties  on  bond  or  undertaking,  683. 
of  time  for  hearing  motion,  607. 
of  examination  of  party  before  trial,  1812. 
on  examination  of  bail  who  seek  to  justify,  1360. 
power  of  referee  to  grant,  2598,  2605. 

in  supplementary  proceedings,  3316. 
execution  sale,  3128. 
judicial  sale,  3222. 

notice  of,  3219. 
of    examination    in    supplementary    proceedings    as    abandonment^ 

3344. 
motion  as  condition  to  grant  of  new  trial  for  surprise,  2714. 
notice  of  postponement  of  execution  sale,  3127. 

PRACTICE, 

where  no  Code  provision  or  rule  of  court,  120. 

PRAYER  FOR  RELIEF, 

order  as  limited  to  relief  sought  in  notice  of  motion,  612. 

omission  in  counterclaim  as  ground  of  demurrer,  1004. 

in  affidavit,  536. 

in  complaint,  927. 

in  notice  of  motion,  585. 

as  determining  right  to  jury  trial,  2152. 

PREFERENCE, 

ground  for  attachment,  1402. 

threats  to  prefer  creditors  as  ground  of  attachment,  1402. 

preferred  claims  against  funds  in  hands  of  receiver,  1649. 

PREFERRED  AND  DEFERRED  CAUSES, 

power  of  court,  1674. 
actions  by  people,  1674. 
criminal  vs.  civil  proceedings,  1675. 
writ  of  mandamus  or  prohibition,  1675. 

respective  order   of  twelve   preferred  groups   of  cases — public   ac- 
tions, 1675. 

New  York  city  actions,  board  of  health  actions,  etc.,  1675. 

appeals,  1676. 

appeals  where  party  has  died  pendente  lite,  1676. 


4540  INDEX. 

[references  are  to  pages.] 
PREFERRED  AND  DEFERRED  CAUSES— Cont'd. 

actions  in  which  a  party  is  in  representative  capacity,  1676, 

4138. 
action  for  dower  or  partition,  1677. 
actions  against  corporation,  or  by  or  against  county  or  town, 

1678. 
actions  against  corporation  for  debt  or  on  undertaking,  1678, 

4138. 
actions  by  or  against  sheriff,  1679. 

cause  preferred  by  rules  of  court  or  order  of  court,  1679. 
action  for  libel  or  slander,  1680. 
appeals,  1680. 
preference  between  issues  of  fact  and  of  law,  1680. 
short  cause  calendar,  1681. 
who  may  claim  preference,  1682. 
procedure  to  obtain  preference,  1682. 
order  of  court,  1683. 

claim  for  preference  where  order  is  not  required,  1686. 
practice  in  seventh  district  and  New  York,  Kings,  Queens,  and 

Erie  counties,  1686,  4138. 
laches  as  ground  for  denying  motion,  1688. 
denial  as  res  judicata,  1689. 
passing  on  call  of  preferred  calendar,  1689. 

PRESUMPTION, 

on  appeal,  see  "Appeal." 
of  authority  of  attorney,  266. 
that  order  is  made  on  sufficient  proof,  617. 
as  to  jurisdiction,  135. 
pleading  facts  which  law  presumes,  827. 
charge  of  judge  as  to,  23-19. 
levy,  3126. 

regularity  of  judicial  sale,  3226. 

of  payment  of  judgment,  as  requiring  dismissal  of  supplementary 
proceedings,  3345. 

PRINCIPAL  AND  AGENT  (see  "Agent"). 

PRINCIPAL  AND  SURETY  (see  "Sureties"). 

PRINTING, 

expenses  as  disbursements,  2989. 

PRIORITIES, 

attorney's  lien,  302. 
between  pending  actions,  46. 


INDEX.  4541 

[references  are  to  pages.] 

PRIORITIES— Cont'd. 

between  attachment  and  other  liens,  1483. 

between  attachments,  1483. 

between  judgment  and  other  liens,  2807. 

between  executions,  3102. 

between  supplementary  proceedings,  3297,  3377. 

between  plaintiffs  in  different  creditors'  suits,  3420. 

PRIVILEGED  COMMUNICATION, 

writings  and  words  of  attorney,  247. 

discovery  and  inspection  of  writings  containing,  1834. 

PRIZE, 

jurisdiction  as  between  state  and  federal  courts,  140. 

PROBATE, 

power  of  receiver  in  supplementary  proceedings  to  contest,  3375. 

PROCESS  (see,  also,  "Summons"), 

general  rules,  119. 

definition,  711. 

original  mesne  and  final  process,  712. 

service  or  return  on  holiday,  105. 

service  and  return  on  Sunday,  104. 

preventing  service  as  civil  contempt,  329. 

general  power  of  courts  of  record  to  devise  new  process,  118,  119. 

fault  or  defect  in  as  cured  by  verdict,  report  or  decision,  703. 

subpoena  as,  1976. 

PROFITS, 

levy  on,  3108. 
PROHIBITION,  WRIT  OF, 

power  of  judge  out  of  court,  237. 
jurisdiction  of  supreme  court,  158. 
preference  on  calendar,  1675. 
order  as  appealable,  3637. 

PROOF, 

order  of,  see  "Order  of  Proof." 

of  service  of  summons,  783. 

of  service  of  summons  by  publication  and  mailing,  790. 

of  substituted  service  of  summons,  791. 

to  obtain  order  for  service  of  summons  by  publication,  763. 

of  personal  service  of  summons  without  the  state,  790. 

of  service  of  papers,  664. 


4542  INDEX. 

[references  are  to  pages.] 
PROOF— Cont'd. 

of  service  of  notice  of  motion,  588. 

of  service  of  subpoena,  1979. 

of  service  of  order  to  appear  in  supplementary  proceedings,  3296. 

PROVISIONAL  REMEDIES  (see,  also,  "Arrest,"  "Bail,"  "Attachment," 
"Injunction,"  "Receivers,"  etc.), 

definition  and  enumeration,  713,  1267. 

granting  of  remedy  as  conferring  jurisdiction,  1268. 

counterclaim  as  basis,  1268. 

joint-debtor  act,  1268. 

election  between  remedies,  1269. 

time  for  decision  of  application  for  provisional  remedy,  1269. 

effect  of  discontinuance  of  action,  2122. 

revival  of  action  on  death  where  no  summons  served,  2081. 

undertaking  precluding  right  to  require  security  for  costs,  1884. 

order  as  appealable  to  appellate  division,  3628. 

PUBLICATION, 
of  notices,  651. 

computation  of  time  of  publication  of  legal  notice,  697. 
of  terms  of  county  court,  194. 

of  proceedings  of  court  as  criminal  contempt,  323. 
notice  of  execution  sale,  3140. 
notice  of  judicial  sale,  3217. 
fees  for  as  disbursements,  2988. 

I.  Publication  of  Summons  and  Service  Without  the  State. 
filing  of  papers,  776. 
service  without  the  state,  780. 
when  allowable,  759. 

non-residence,  759. 

departure  from  state,  or  concealment  within,  with  intent 
to  defraud  creditors,  760. 

absence  from  state  for  more  than  six  months,  760. 

matrimonial  actions,  761. 

actions  affecting  title  to  property,  761,  4089. 

where  statute  of  limitations  interferes,  761. 

actions  against  stockholders,  762. 
persons  who  may  be  served  by  publication,  762. 
procedure  where  summons  delivered  to  other  than  defendant, 

762. 
proof  to  obtain  order,  763. 
verified  complaint,  763. 


index.  4543 

[references  are  to  pages.] 

PUBLICATION— Con'td. 
affidavits,  765. 

by  whom  made,  766. 

averments  on  information  and  belief,  766. 

averments  as  to  non-residence,  767,  4089. 

averments  as  to  attempt  to  make  personal   service,   767, 
4089. 

filing,  770. 
order,  770. 
necessity,  770. 
who  may  make,  770. 
contents,  771. 

directing  service'  in  the  alternative,  772. 

directing  mailing  of  copies,  772. 
vacating  or  setting  aside  order,  775. 
vacating  attachment  as  affecting  order  for,  1527. 
collateral  attack,  775. 
second  order,  775. 
filing  of  papers,  776. 

time  for  first  publication  or  service,  776. 
sufficiency  of  published  summons,  776. 

notice,  777. 
the  newspaper,  778. 
period  of  publication,  778. 
effect  of  death  pending  publication,  779. 
when  service  deemed  complete,  781. 
right  of  defendant  to   defend  before  or  after  judgment,   781, 

4089. 
computation  of  time  for  publication  of  summons,  697. 
entry  of  default  judgment  where  service   of  summons  is  by, 
2858. 

PUFFER, 

employment  of  as  ground  for  setting  aside  judicial  sale,  3228. 

PUIS  DARREIN  CONTINUANCE, 
pleading  at  common  law,  1049. 


Q. 

QUESTIONS, 

objections  to,  2264. 

time  and  sufficiency,  2255. 


4544  INDEX. 

[references  are  to  pages.] 

QUESTIONS  OF  FACT   (see,  also,  "Requests  to  Find"), 

reference  to  report  on,  25G9. 

judgment  after  trial  of  specific  questions  of  fact,  2778. 

by  jury,  2778. 

by  referee,  2779. 
new  trial  of  specific  questions  tried  by  a  jury,  273G. 
review  on  appeal  as  dependent  on  motion  for  new  trial,  2685. 
review  where  order  for  new  trial  does  not  specify  grounds,  2740. 
review  where  exceptions  heard  by  appellate  division,  2725. 
review  as  dependent  on  case  containing  all  evidence,  2665. 
submission  to  jury  pending  decision  of  motion  for  non-suit,  2296. 
charging  judge's  opinion  as  to,  2317. 
power  of  court  of  appeals  to  review,  3872. 

QUESTIONS  OF  LAW   (see,  also,  "Requests  to  Find"), 

as  admitted  by  demurrer,  1012. 

surprise  as  to,  as  ground  for  new  trial,  2710. 

reference  where  difficult  questions  of  law  are  involved,  2560. 

province  of  court  and  jury,  2312. 

questions  for  jury,  2313. 
distinguishing  between  in  charge  to  jury,  2315. 
direction  of  verdict  subject  to  opinion  of  court,  2288. 
review  by  court  of  appeals,  3874. 

QUIETING  TITLE, 

ten  years  in  which  to  sue  under  statute  of  limitations,  472. 

place  of  trial  of  action  to  quiet  title,  350. 

action  by  execution  purchaser,  3148. 

basis  of  computing  additional  allowance,  3016. 

QUORUM, 

in  court  of  appeals,  151. 

QUO  "WARRANTO, 

cumulative  remedies,  40. 

place  of  trial,  355. 

bill  of  particulars  in  actions  to  try  title  to  office,  870. 

place  of  trial,  364. 

struck  jury,  2055. 

additional  allowance  of  costs,  3011. 

double  costs,  2992. 


INDEX.  4545 

[BEFEBENCES   ABE  TO  PAGES.] 

R. 

RAILROADS, 

place  of  trial  of  action  to  recover  on  railroad  aid  bonds,  353. 
inconsistent  causes  of  action  against  company,  72. 
rolling  stock  as  subject  to  execution,  3106. 

REAL  ACTIONS, 

jurisdiction  where  land  is  without  state,  128,  129. 
particular  real  actions,  see  "Ejectment,"  etc. 

REAL  EVIDENCE, 

permissibility,  2216. 
REAL  PARTY  IN  INTEREST, 

allegation  in  pleading  as  conclusion  of  law,  829. 

right  to  sue,  375  et  seq. 

power  to  make  affidavit  of  merits,  561. 

necessity  of  pleading  as  defense,  957. 

sufficiency  of  answer  denying,  960. 

joinder  of  representative  as  plaintiff,  404,  405. 

substitution  where  interest  or  liability  acquired  pending  suit,  2072. 

REAL  PROPERTY  (see,  also,  "Waste,"  Nuisance,"  "Partition,"  "In- 
juries to  Property,"  "Specific  Performance,"  "Ejectment,"  "De- 
termination of  Claim  to  Real  Property"), 

actions  for  dower,  see  "Dower." 

bill  of  particulars  in  actions  relating  to,  869. 

place  of  trial  of  actions  for  damages  for  injuries,  352. 

place  of  trial,  real  property  without  state,  363,  364. 

limitations  applicable  to  actions  for  recovery  of,  456  et  seq. 

place  of  trial  of  action  to  compel  conveyance,  350,  351. 

as  subject  to  attachment,  1406. 

power  of  receiver  to  take  and  hold,  1646. 

order  of  arrest  in  actions  for  injury  to,  1280. 

survey  in  actions  relating  to,  1832. 

sale  on  execution,  see  "Execution  against  Property." 

docketing  judgment  to  create  lien  on,  2795,  and  see  "Judgment." 

what  is  an  interest  in,  to  which  lien  of  judgment  will  attach,  2798. 

judgment  as  lien  on  equitable  estate,  2799. 

costs  in  actions  involving  title  to,  2907,  and  see  "Costs." 

when  title  vested  in  receiver  in  supplementary  proceedings,  3360. 

REARGUMENT, 

of  motion,  see  "Order." 
allowance  by  referee,  2602. 

N.  Y.  Prac—  285. 


L546 


INDEX. 


[itKKEKEXCES   are  to  pages.] 

REASONABLE  DOUBT, 
charging  as  to,  2331. 

REBUTTAL, 

evidence,  2225. 

new  trial  to  present  testimony  in  rebuttal,  2712. 

RECEIPT, 

on  delivery  of  execution  to  sheriff,  3088. 

RECEIPTORS, 

duties  and  liabilities,  1477. 

RECEIVERS, 

in  creditor's  suit,  see  "Creditor's  Suit." 

in  supplementary  proceedings,   see   "Supplementary   Proceedings." 

as  officer  of  court,  3063. 

kinds,  1019. 

nature  of  office,  1621. 

termination  of  receivership,  1653. 

accounting,  1654. 

commission,  1655,  4136. 

allowance  of  expenses,  1656. 
discharge,  1656. 

right  to  attach  property  of,  1384. 
right  to  move  to  vacate  attachment,  1513. 
preference  on  calendar  where  receiver  is  a  party,  1676. 
substitution  as  party  where  appointed  pending  suit,  2074,  2077. 
duty  to  give  certificate  to  officer  holding  attachment,  1499. 
priority  of  receivership  over  attachment  lien,  1483. 
security  for  costs,  1893. 

effect  of  death  or  removal  pending  suit  by  or  against,  2079. 
institution  of  proceedings  as  ground  of  attachment,  1401. 
appointment  as  precluding  right  to  attach  property,  1415. 
appointment  as  affecting  attorney's  lien,  291. 
applications  as  to,  as  special  proceedings,  16,  17. 
place  to  move  as  to,  596. 
jurisdiction  over  foreign,  133. 

power  to  move  to  vacate  judgment  by  confession,  2890. 
personal  liability  for  costs,  2951. 
liability  of  third  person  for  costs,  2947. 

judgment   requiring   payment   to,  as   enforcible   by   contempt  pro- 
ceedings, 3063. 
property  in  hands  of  as  subject  to  execution,  3140. 
appointment  as  divesting  lien  of  execution,  3101. 


index.  4547 

[references  are  to  pages.] 

RECEIVERS— Cont'd. 

examination  of  in  supplementary  proceedings,  3257. 
avoiding  transfers  by  debtor  where  estate  is  insolvent,  3432. 
notice  to  of  motion  to  vacate  judgment,  2828. 
action  on  certificates  by  one  holder  in  behalf  of  all,  417. 

I.  Grounds  for. 

subject-matter  of  receivership,  1622. 

anticipated   removal,    destruction,   loss   or   injury    to   property 

pendente  lite,  1623. 
enforcement  of  judgment,  1626. 
preservation  of  property  pending  an  appeal,  1626. 
receiver  of  estate  of  decedent,  1627. 
ordering  deposit  in  lieu  of  receivership,  1627. 

II.  The  Appointment. 

jurisdiction,  1627. 
discretion  of  court,  1628. 
double  receivership,  1628. 
the  application,  1629. 

time  for  application,  1629. 

place  for  motion,  1630. 

who  may  apply,  1630. 

moving  papers,  1630. 

notice  of  application,  1631. 
the  hearing,  1632. 
who  may  be  appointed,  1632. 
the  order,  1633. 

relation  back,  1634. 

vacation  of  order,  1634. 
security,  1634,  4136. 

amount,  1635. 

filing  the  bond,  1635. 

effect  of  want  of,  or  defects  in,  bond,  1635,  4136. 

actions  on  bond,  689,  1636. 

new  bond,  1636. 

liability  of  surety,  1636. 
filing  notice  of  appointment,  1637. 
effect  of  appointment,  1638. 
collateral  attack,  1638. 
removal  of  receiver,  1638. 

III.  Powers,  Duties,  and  Liabilities. 
obtaining  possession  of  the  property,  1640. 
retention  of  possession,  1641,  4136. 


454:8  INDEX. 

[references  are  to  pages.] 

RECEIVERS— Cont'd. 

interference  with  possession  as  contempt,  329. 

contracts  in  general,  1G42. 

disposition  and  care  of  property  and  proceeds,  1G42. 

leases,  1645. 

taking  and  holding  real  property,  1646. 

employment  of  counsel,  1G46. 

continuation  of  business,  1647. 

intervention  by  receiver,  431,  432,  1647. 

actions,  1647,  4136. 

place  of  trial,  352. 

leave  to  sue,  88. 

complaint,  923. 
payments,  1649. 

applications  by  receiver  for  leave  to  act,  1652. 
actions  against  receivers,  1652. 

parties,  1653. 

limitations,  481,  1653. 

leave  to  sue,  88. 
power  to  appeal,  3656. 

RECITALS, 

stating  facts  in  pleading  by  way  of,  845. 
RECORD, 

entry  of  appearance  as  part  of,  810. 
necessity  of  pleading,  832. 
what  constitutes  recording  of  verdict,  2363. 
inspection  of  writings  of  record,  1834. 
removal  by  subpoena  duces  tecum,  1973. 

I.  Of  Particular  Papers. 

order  appointing  receiver  in  supplementary  proceedings,  3354. 

certificate  of  redemption  from  execution  sale,  3180. 

sheriff's  deed,  3160. 

certificate  of  execution  sale,  3147. 

notice  to  permit  execution  after  ten  years,  2801. 

RECOUPMENT  (see  "Counterclaim  and  Set-Off"). 

RECOVERY, 

what  constitutes,  2922. 

REDEMPTION, 

of  real  property  from  execution  sale,  3162  et  seq. 
from  judicial  sale,  3246. 


INDEX.  4549 

[references  are  to  pages.] 

REDIRECT  EXAMINATION  (see  "Examination  of  Witnesses"). 

REDUNDANCY, 

what  is,  and  effect  in  pleadings,  833. 
striking  out  redundant  allegations,  1066. 
ground  of  demurrer,  1001. 

REFERENCE  (see,  also,  "Report,"  "Requests  to  Find"), 
as  special  proceeding,  17. 
as  infringing  on  right  to  jury  trial,  2139. 
as  waiver  of  trial  by  jury,  2147. 
as  condition  of  changing  place  of  trial,  1962. 
motion,  2572. 

motion  papers,  2574. 

opposing  papers,  2575. 
hearing  and  determination,  2576. 

burden  of  proof,  2577. 
order,  2577. 

who  may  make,  2580. 

entry  and  service,  25S0. 

provision  as  to  costs,  2580. 

amendment,  2580. 

vacation,  25S1. 

collateral  attack,  2582. 

waiver  of  objections,  2582. 

appeal,  2582. 
judgment  ordering  reference  as  interlocutory,  2752. 
on  motion  for  new  trial,  2736. 

to  hear  proof  where  judgment  taken  by  default,  2858,  2861. 
to  take  proof  on  motion  to  open  default  judgment,  2875. 
power  of  special  term  to  compel  referee  to  resettle  case,  2679. 
power  of  referee  to  sell  pursuant  to  judgment,  3220. 
duty  to  give  security,  3221. 

I.  Reference  by  Consent. 

the  consent,  2553. 

implied  power  of  attorney,  271. 
order,  2554. 

who  appointed  referee,  2555,  4166. 
number  of  referees,  2556. 
extent  of  reference,  2556. 
termination  by  reason  of  extrinsic  events,  2556. 

effect  of  reversal  on  appeal  or  granting  of  a  new  trial, 
2557. 
effect,  2557. 


4550 


INDEX. 


[REFERENCES  are  to  pages.] 
REFERENCE— Cont'd. 

II.  Right  to  Compulsory  Reference. 

examination  of  long  account  in  actions  triable  by  a  jury,  2557, 

what  constitutes  an  account,  2559. 

what  is  a  "long"  account,  2560. 

difficult  questions  of  law,  2560. 

necessity  that  account  be  main  issue,  2561. 

effect  of  joinder  of  causes  of  action,  2562. 

pleadings  to  be  considered,  2563. 

illustrations  of  rule  as  applied  to  particular  actions,  2563. 

reference  as  matter  of  right,  2567. 
examination  of  account  in  actions  triable  by  court,  2567. 

reference  to  report  on  specific  questions  of  fact,  2568. 

order  of  trial  of  issues,  2569. 
reference  of  incidental  questions,  2569. 

reference  to  take  an  account,  2570. 

reference  on  collateral  matters,  2570. 

reference  provided  for  by  section  827  of  Code,  2571. 

III.  The  Referee. 

number  of  referees,  2582. 

who  may  be  appointed,  2583,  4166. 

residence,  2583. 
resignation,  2583. 
removal,  2583. 
appointment  of  new  referee,  2586. 

after  reversal  on  appeal,  2586. 
termination  of  powers,  2587. 
appointment  without  order  as  ground  for  vacating  judgment, 

2816. 
fees  of  referee,  3047. 

compensation  for  selling  at  judicial  sale,  3246. 
fees  as  disbursements,  2984. 

affidavit  as  to  disbursements  for  referee's  fees,  3030. 
right  to  appeal,  3659. 

IV.  Procedure  on  Reference  to  Hear  and  Determine. 
order  as  authority  of  referee,  2588. 

oath  of  referee,  2588. 

who  may  administer,  2588. 

express  waiver,  2588. 

effect  of  failure  to  be  sworn,  2588,  703. 
bringing  on  case,  2589. 

notice  of  time  and  place  of  hearing,  2589. 

notice  of  trial,  2590. 


INDEX.  4551 

[REFERENCES   ABE   TO   PAGES.] 

REFERENCE— Cont'd. 

subpoenaing  witnesses,  2591. 
place  of  hearing,  2591. 
powers  of  duties,  2592. 

dismissal,  nonsuit,  and  judgment  on  the  pleadings,  1082, 
2593. 

supplemental  pleadings,  1057,  1059. 

order  to  produce  papers,  1970. 

administering  oath  to  witnesses,  2594. 

admitting  or  rejecting  evidence,  2594. 

striking  out  evidence,  2595. 

reopening  cases,  2596. 

amendments,  705,  1029,  1043,  2596. 

adjournment,  2598. 

costs,  2599. 

punishment  for  contempt,   319,  2599. 

determination  of  issues,  2600. 

power  to  settle  case,  2671. 

power  to  hear  motion  for  additional  allowance,  3022. 
reargument,  2602. 
new  trial,  2684,  2737,  2739. 
necessity  of  case  on  motion  for  new  hearing,  2655,  2656. 

V.  Procedure  on  Reference  to  Report  on  Facts. 

order  as  authority  of  referee,  2603. 
bringing  on  hearing,  2603. 

notice,  2604. 
subpoenaing  witnesses,  2605. 
procedure  on  hearing,  2605. 

oath  of  referee,  2605. 

adjournments,  2605. 

evidence,  2606. 

signing  testimony,  2607. 

punishment  for  contempt,  319,  2607. 

costs,  2607. 
hearing  on  reference  to  take  an  account,  2608. 

VI.  Costs. 

as  discretionary,  2495. 
to  abide  event,  2938. 
amount,  2972. 

VII.  In  Particuar  Proceedings. 

in   supplementary   proceedings,   see   "Supplementary    Proceed- 
ings." 


1 552  index. 

[references  are  to  pages.] 

REFERENCE— Cont'd. 

in  proceeding  to  enforce  attorney's  lien,  307. 

to  determine  attorney's  compensation  on  substitution,  278. 

on  application  for  judgment  on  failure  to  reply,  992. 

on  hearing  of  motions  in  general,  609,  610. 

under  order  compelling  affidavit  or  deposition  for  motion,  583. 

on  examination  of  party  before  trial,  1810. 
physical  examination,  1822. 

to  determine  damages  sustained  by  temporary  injunction,  1606. 

in  connection  with  discovery  and  inspection,  1852. 

on  hearing  of  motion  continuing  a  temporary  injunction,  1591. 

to  determine  location  of  property  where  receiver  is  appointed, 
1641. 

on  application  for  an  attachment,  1452. 

to  examine   person  who   refuses  certificate  in  aid   of  attach- 
ment, 1499. 

REFORMATION  OF  WRITTEN  INSTRUMENTS. 

statute  of  limitations,  472. 
additional  allowance  of  costs,  3011. 

REHEARING  (see,  also,  "Orders"), 
of  motion  for  new  trial,  2745. 

I.  On  Appeal. 

grounds,  3831. 
who  may  move,  3834. 
time  for  motion,  3834. 
motion  papers,  3835. 

notice  of  motion,  3836. 
briefs,  3836. 
copy  of  opinion,  3837. 
delivering  papers  to  clerk,  3837. 
hearing  of  motion,  3837. 

argument,  3837. 

discretion  of  court,  3837. 

RELATIVES, 

relationship  of  judge  to  party  as  disqualification,  230,  231. 
relationship  to  referee  as  ground  for  setting  aside  his  report,  2632. 
disqualification  of  juror,  2192. 

RELATOR, 

liability  for  costs,  2961. 


index.  4553 

[references  are  to  pages.] 
HELEASE, 

implied  power  of  attorney  to  release  cause  of  action,  270. 
of  sureties  on  bond  or  undertaking,  G83. 
necessity  of  pleading  as  defense,  954. 
pleading  by  supplemental  answer,  1054. 
of  attachment  lien,  1485. 

of  imprisoned  debtor  as  satisfaction  of  judgment,  3208. 
from  judgment  as  precluding  receiver  in  supplementary  proceed- 
ings, 3352. 

RELEVANCY  (see  "Irrelevancy"). 

RELIEF  (see,  also,  "Multiplicity  of  Relief"), 
prayer  for,  see  "Prayer  for  Relief." 
against  mistakes,  omissions  or  neglect,  708. 

RELIGIOUS  CORPORATIONS, 

time  within  which  to  bring  action,  458. 

jurisdiction  of  supreme  court  to  investigate  property  holdings,  159. 

REMEDIES    (see,    also,    "Cumulative    Remedies,"    "Election    Between 
Remedies"), 
legal  as  distinguished  from  equitable,  18. 
choice  of,  39. 

REMITTITUR, 

assessment  of  damages  after,  from  court  of  appeals,  2867. 
judgment  or  order  of  court  of  appeals,  3920. 

REMOVAL, 

of  receiver,  1638. 

of  guardian,  2052. 

of  property  as  ground  of  attachment,  1398. 

of  referee,  2584. 

of  receiver  in  supplementary  proceedings,  3258. 

of  sheriff,  before  return  of  execution,  effect,  3058. 

REMOVAL  OF  CAUSES, 

transfer  of  actions  to  supreme  court,  161. 

from  county  to  supreme  court,  192-194. 

from  city  court  of  New  York  to  supreme  court,  210. 

as  affecting  amount  in  controversy,  125. 

as  dissolving  temporary  injunction  granted  in  state  court,  1603. 

RENEWAL, 

of  motion,  639. 

before  whom  motion  may  be  renewed,  604. 

of  motion  to  change  place  of  trial,  1950. 


4554  INDEX. 

[references  are  to  pages.] 

RENT   (see,  also,  "Landlord  and  Tenant"), 
necessity  of  demand  before  suing  for,  81. 
successive  actions  to  recover  installments  of,  55. 
reached  by  creditor's  suit,  3405. 
as  belonging  to  receiver  in  supplementary  proceedings,  3307,  3308-. 

REOPENING  CASE, 

after  party  has  rested,  2227. 
REPETITION, 

in  pleading,  837. 

of  charge  to  jury  once  given,  2337. 

of  questions  to  witnesses,  2231. 

of  objection  to  questions  put  to  witness,  2269. 

REPLEVIN, 

nature  of  common  law  action,  25. 

election  between  remedies,  43. 

necessity  of  demand  before  bringing  replevin,  82. 

place  of  trial  of  action,  359. 

requiring  bill  of  particulars,  869. 

time  within  which  to  bring  action,  476. 

pendency  of  action  as  bar  to  action  for  price,  48. 

power  to  join  causes  of  action  to  recover  chattels,  65. 

taxation  of  fees  by  county  judge,  191. 

necessity  of  obtaining  leave  of  court  to  sue  clerk  as  custodian,  88. 

abatement  by  death  of  party,  2071. 

right  to  order  of  arrest,  1281. 

right  to  trial  by  jury,  2140. 

interpleader  in  action,  1859,  1862. 

offer  to  allow  judgment  before  trial,  1989. 

contents  of  execution,  3097. 

goods  replevied  as  subject  to  execution,  3106. 

costs  as  matter  of  right,  2912. 

double  costs,  2990. 

body  execution,  3199. 

REPLY, 

necessity  for,  987,  4111. 

time  for,  987. 

order  of  court  requiring,  988,  4111. 

right  to,  990. 

contents  and  sufficiency,  990,  4112. 

departure,  991,  4112. 
effect  of,  991. 


index.  4555 

[REFERENCES  are  to  pages.] 
REPLY— Cont'd. 

ordering  made  more  definite,  1064. 

necessity  of  to  amended  answer,  1048. 

grounds  of  demurrer  to,  1004. 

as  waiving  objection  that  counterclaims  not  available  as  such,  1093. 

judgment  on  pleadings  where  reply  frivolous,  1072. 

admission  by  failure  to  deny,  911. 

admission  by  indirect  denials,  911. 

striking  out  cause  inconsistent  with  complaint,  1089. 

service  of  copy,  882. 

waiver  of  objections  because  of  want  of,   1092. 

supplemental  reply,  1056. 

inquest  on  failure  to,  2170. 

discovery  and  inspection  to  frame,  1835. 

REPORT, 

use  of  word  in  Code,  2614. 
definition,  2614. 
preparation,  2614. 
formal  parts,  2616. 

caption,  2616. 

address,  2616. 

date,  2616. 

signature,  2616. 
contents  where  reference  is  of  all  the  issues,  2616. 

finding  of  facts,  2617,  4166. 

conclusions  of  law,  2619. 
contents  where  reference  is  of  part  of  issues,  2620. 
contents  on  hearing  of  demurrer  or  motion  for  nonsuit,  2621. 
contents  where  reference  is  interlocutory,  2622. 
amendment,  2624. 
time  in  which  to  make  report,  2625,  4166. 

waiver  of  right  to  terminate,  2626. 

when  time  begins  to  run,  2627. 

who  may  give  notice  to  terminate,  2628 

service  of  notice,  2628. 

sufficiency  of  notice,  2628. 

waiver  of  notice,  2628. 

enlarging  time,  2628. 
vacation  or  setting  aside,  2628,  2744. 

misconduct  of  referee,  2630. 

relationship  of  referee,  2632. 
exceptions,  2632. 

time,  2636. 


4556  INDEX. 

[references  are  to  pages.] 

REPORT— Cont'd. 

who  may  except,  263G. 

sufficiency,  2637. 
confirmation  and  hearing  of  exceptions,  2638. 

time,  2640. 

order,  2641. 

effect,  2642. 

appeal,  2642. 
sending  case  back  to  referee,  2642. 

appointment  of  new  referee,  2645. 

procedure  before  referee  on  return  of  report,  2646. 

amended  report,  2646. 
entry  of  judgment,  169,  2647. 

where  reference  is  to  determine  all  the  issues,  2647,  2769. 

where  part  of  the  issues  are  referred,  2648,  4166. 

where  reference  is  interlocutory,  2648. 
review  on  appeal  and  subsequent  procedure,  2649. 
effect  of  death  of  party  after,  2100. 
as  terminating  power  of  referee,  2587. 

amendment  of  judgment  where  it  fails  to  conform  to,  2809. 
including  in  judgment  roll,  2788. 
including  in  case,  2662. 

service  to  limit  time  to  prepare  case,  2657. 
findings  in  as  controlling  findings  in  case,  2679. 
of  referee  in  supplementary  proceedings,  3317. 
conditions  on  setting  aside  report  of  referee,  2744. 
attorney's  lien  on,  295. 

REPORTER, 

secreting  himself  in  jury  room  as  contempt,  321. 

REPRESENTATIVES, 
definition,  2087. 

REPUTATION, 

impeachment  of  witnesses,  2254. 
evidence  to  sustain,  2255. 

REQUESTS, 

to  charge  jury,  2333,  2346. 

to  go  to  jury,  after  motion  for  non-suit,  2299. 

I.  To  Find. 

propriety,  2378,  2609. 
time  for  submission,  2610. 


index.  4557 

[REFERENCES  are  to  pages.] 

REQUESTS— Cont'd. 

form  and  contents,  2611. 
disposition  of,  2612. 
review  of  refusal,  2614. 
as  estoppel,  2614. 
exceptions  to  refusal,  2387. 

REQUISITION, 

difference  between  order  and,  617. 

RESCUE, 

of  property  as  contempt,  328. 

RESETTLEMENT, 
of  order,  632. 
of  case,  2679. 

RESIDENCE   (see,  also,  "Absence,"  "Non-residence,"  "Non-Residents," 
"Domicile"), 
compelling  attorney  to  disclose  client's  address,  256. 
place  of  trial  as  governed  by,  360,  364. 
as  affecting  power  to  practice  as  attorney,  241. 
removal  of  attorney  from  state  as  ground  for  substitution,  274,  275. 
of  referee,  2584. 
what  constitutes,  1886,  3277. 
difference  between  residence  and  domicile,  1394. 
who  not  resident  within  attachment  laws,  1394  et  seq. 

RESIGNATION, 
of  referee,  2584. 

RESPONSIVENESS, 

of  answers  of  witness,  2231. 

RESTITUTION, 

on  vacating  judgment,  2831. 

on  granting  new  trial,  2740. 

on  vacation,  annulment  or  discharge  of  attachment,  1528,  1534. 

undertaking  for,  where  judgment  rendered  by  default,  2859. 

enforcement  of  order  by  execution,  3059-3061. 

after  reversal  on  appeal,  3909. 

RESULTING  TRUSTS, 

power  of  receiver  in  supplementary  proceedings  as  to,  3372. 
creditor's  suit  to  reach,  3387  et  seq. 


i;,;,S  INDEX. 

[references  are  to  pages.] 
RETAXATION, 
of  costs,  3035. 

RETURN, 

of  writs  and  process  in  general,  119. 

waiver  by  failure  to  return  pleading,  823,  1093. 

by  sheriff  of  service  of  summons,  784. 

where  order  to  show  cause  is  returnable,  593. 

of  sheriff  as  proof  to  obtain  order  for  publication  of  summons,  765. 

of  pleadings,  915. 

of  papers  served,  for  irregularity,  669. 

amendment  of,  706. 

insufficiency  as  cured  by  verdict,  report  or  decision,  703. 

of  attachment,  1463,  1536. 

of  notice  of  trial,  1667. 

of  demand  for  change  of  place  of  trial,  1943. b 

on  vacation  or  annulment  of  warrant  of  attachment,  1474. 

to  habeas  corpus  to  bring  up  prisoner  to  testify,  1987. 

by  commissioner  where  deposition  taken  outside  of  state,  1758. 

conclusiveness  as  against  bail,  1372. 

of  execution,  3182,  and  see  "Execution  Against  Property." 

direction  in  execution  as  to,  3096. 

before  commencing  supplementary  proceedings,  3277. 

before  bringing  creditor's  suit,  3383  et  seq. 

REVERSAL, 

effect,  on  contempt  proceedings  for  disobedience,  337,  338. 

additions  to  time  in  which  to  sue  after,  509,  510. 

as  vacating  order  of  reference,  2556. 

new  referee  after  reversal,  2586. 

for  omission  to  insert  proper  papers  in  judgment  roll,  2789. 

of  order  vacating  judgment,  2829,  2830. 

effect  on  title  of  execution  purchaser,  3133. 

canceling  docket  of  reversed  or  modified  judgment,  2806. 

effect  of  reversal  of  order  setting  aside  an  attachment,.  1528. 

effect  where  framed  issues  have  been  tried  by  jury,  2165. 

effect  here  party  has  died  after  verdict,  2102. 

for  want  of,  or  defects  in,  decision,  2384. 

new  notice  of  trial  after  reversal,  1663. 

REVIEW  (see,  also,  "Appeal"), 

power  of  judge  in  another  court  to  review  his  decision,  224. 
of  order  made  by  judge  of  another  court,  632. 

REVIVAL  (see  "Abatement  and  Revival"). 


index.  4559 

[references  are  to  pages.] 

ROADS   (see  "Highways"). 

RULE  NISI    (see  "Order  to  Show  Cause"). 

RULES  OP  COURT, 

of  court  of  appeals,  150. 

of  city  court  of  New  York,  208. 

establishment  for  court  of  appeals,  106. 

for  other  courts  of  record,  106. 
publication,  107. 
validity,  107. 
construction,  108. 
force  and  effect,  108. 
amendment,  108. 
further  rules,  109. 

practice  when  not  covered  by  rules  or  statutes,  109. 
necessity  of  pleading,  832. 

RULES  OF  PRACTICE  (see  "Rules  of  Court,"  "General  Rules  of  Prac- 
tice"), 

s. 

SALES  (see,  also,  "Vendor's  Lien,"  "Bona  Fide  Purchasers,"  "Title," 
"Conditional  Sales,"  "Goods  Sold  and  Delivered,"  "Judicial 
Sales,"  "Caveat  Emptor,"  "Conditional  Sales,"  "Execution 
Against  Property,"  "Warranty"), 

purchase  by  attorney  of  things  in  action,  264,  265. 

by  receiver,  1642,  3367,  3368. 

by  sheriff  of  perishable  property  and  animals,   1478. 

of  property  as  ground  of  attachment,  1398. 

purchases  by  guardian  ad  litem,  2052. 

interest  of  contract  purchaser  of  realty  as  subject  to  execution, 
3138. 

judgment  as  lien  on  land  held  under  contract  for  purchase,  2798. 

place  of  trial  of  actions  relating  to,  353. 

limitations  of  actions,  452,  458. 

SALVAGE, 

jurisdiction  as  between  state  and  federal  courts,  140. 

SATISFACTION, 

of  judgment,  2834. 

filing  satisfaction  piece,  where  judgment  satisfied,  2S37. 


4560  INDEX- 

[HEFI  KIM  IS     AUK    TO    PAGES.] 

SATURDAY, 

half-holiday,  see  "Holidays." 

SAVING  QUESTIONS  FOR  REVIEW, 
offer  of  proof.  2229. 

SAVINGS  AND  LOAN  ASSOCIATIONS    (see  "Building  and  Loan  As- 
sociations"), 

SAVINGS  BANKS, 

interpleader  of  claimants  in  action  against,  1865. 

SCANDALOUS  MATTER, 

in  affidavit,  545. 

what  is,  and  effect  of.  in  pleadings,  833. 

striking  out  of  pleading,  106G. 

SCHEDULES, 

annexation  to  statement  confessing  judgment,  2885. 

SCHOOLS, 

costs  in  actions  against  officers,  2938. 

SCIENTIFIC  FACTS, 

necessity  of  pleading,  831. 

SCINTILLA  OF  EVIDENCE, 

taking  case  from  jury,  2283. 

SCIRE  FACIAS, 

nature  of  proceedings,  IS. 
substitutes  for,  3067. 

SEAL, 

to  summons,  721. 

on  bond  or  undertaking,  G7G. 

of  courts  in  general,  120. 

on  writs  and  process  in  general,  119. 

sealed  verdict,  235G. 

necessity  of  sealing  packet  containing  deposition,  1758. 

on  execution,  3091. 

on  receiver's  bond  in  supplementary  proceedings,  3356. 

SEALED  INSTRUMENTS, 

when  action  for  breach  of  covenant  accrues,  498. 
limitations  within  which  suit  must  be  brought  on,  468-470.. 


INDEX.  4561 

[REFEBEIsCES   ABE   TO   PAGES.] 

SEARCHES, 

fees  paid  for  as  disbursements,  2989. 

SECOND  MOTION, 

renewal  of  motion,  639  et  seq. 

SECURITY  FOR  COSTS, 

who  compelled  to  give  as  matter  of  right,  1884,  4148. 

nonresident,  1885,  4148,  4149. 

foreign  corporation,  1887. 

person  imprisoned  under  execution  for  crime,  1888. 

assignee,  1888. 

infant,  1889. 

person  whose  status  changes  after  suing,  1889. 
who  compelled  to  give  in  discretion  of  court,  1890. 

executors  and  administrators,  and  persons  suing  them,  1891. 

trustee  of  an  express  trust,  1893,  4149. 

persons  expressly  authorized  to  sue  or  to  be  sued,  1894. 

assignee,  1895. 

committee  of  incompetent,  1895. 
procedure — before  whom  to  move,  1895. 

who  may  move,  1896. 

time  for  motion,  1896,  4149. 

notice  of  motion,  1898. 

motion  papers,  1S99,  4149. 

hearing,  1900. 

order,  1901. 
undertaking,  1902. 

justification  of  sureties,  1904. 

liability  of  sureties,  1904. 
deposits  in  court,  1905. 
additional  security,  1906. 
effect  of  failure  to  give  security,  1907. 

liability  of  attorney  for  costs,  1908. 
requiring  as  condition  of  allowing  suit  to  be  revived,  2087. 
order  as  precludig  leave  to  sue  as  poor  person,  1873. 
on  motion  to  vacate  leave  to  sue  as  poor  person,  1881. 
in  supplementary  proceedings,  3344. 

giving  of,  as  condition  of  opening  default  judgment,  2876. 
on  substitution  of  attorneys,  279. 

SEDUCTION, 

right  to  require  bill  of  particulars,  868. 

time  within  which  to  sue,  482. 

action  not  abated  by  death  of  father,  2066  note. 

costs  as  matter  of  right,  2915. 

N.  Y.  Prac— 286. 


1:562  INDEX. 

[references  are  to  pages.] 

SEQUESTRATION, 

nature  and  history  of  writ,  3437. 

present  use,  3438. 

place  for  making  motions  relating  to,  596. 

SERVANTS  (see  "Master  and  Servant"). 

SERVICE, 

of  order,  626. 

of  motion  papers,  576,  577. 

of  order  to  show  cause,  594. 

of  notice  of  motion,  587. 

time  for  service  of  order  extending  time,  by  mail,  940. 

necessity  of  before  punishment  for  contempt,  334. 

sufficiency  of  copy  of  affidavit  served,  545. 

of  amendment,  707. 

compelling  acceptance  of  service  of  case,  2658. 

I.  Of  Papers  in  General. 

conditional  service,  654. 

necessity  of  personal  service,  655. 

service  on  party  or  on  attorney,  655,  4084. 

necessity  of  service  on  defendant  not  appeared,  656. 

service  on  party,  656. 

service  on  attorney,  656. 

on  firm  of  attorneys,  656. 

on  non-resident  attorney,  657. 

during  absence  of  attorney,  657,  658,  4084. 

at  attorney's  residence,  659. 
service  by  mail,  659. 

place  of  mailing,  661. 

time  for  mailing,  661. 

prepayment  of  postage,  661,  4085. 
service  on  clerk  of  court,  662. 
time  for  service,  662. 

service  by  mail,  662,  4085. 
service  on  holidays,  663. 

on  Sunday,  664. 
proof  of  service,  664. 

admission  of  service,  666. 
withdrawal  of  service,  668. 
waiver  of  objections,  668. 
service  on  attorney  in  open  court,  247. 


INDEX.  4563 

[references  are  to  pages.] 
SERVICE— Cont'd. 

II.  Of  Pleadings. 

necessity  of  service  in  general  and  time  therefor,  881,  4100. 
service  of  answer  on  co-defendant,  883,  2761. 
service  of  amended  pleading,  884,  1043. 

service  of  pleading  amended  as  of  course,  884. 
of  amended  pleading  in  a  subsequent  proceeding,  1026. 

III,  Of  Summons. 

substituted,  see  "Substituted  Service  of  Summons." 

service  of  complaint  or  notice  with,  summons,  727-729,  4036, 

4100. 
notice  of  no  personal  claim,  729. 
persons  exempt  from  service,  730,  4086. 
parties  and  witnesses,  730. 

duration  of  immunity,  732. 

waiver  of  right  to  insist  on  privilege,  732. 
foreign  representatives,  732. 
person  in  custody,  733. 
time  of  service,  733. 
Sunday,  733. 

legal  holiday,  733. 
place  of  service,  734,  4086. 
who  may  serve,  734. 
mode  of  service,  735,  4086. 

where  party  is  unwilling  to  accept,  735. 

duties  of  sheriff  in  serving  process,  736. 
revival  of  service  after  withdrawal,  736. 
service  by  artifice  on  nonresident,  736. 
concealment  to  evade  as  ground  of  attachment,  1397. 
dismissal  for  failure  to  serve  part  of  defendants,  2132. 
guardian  ad  litem  for  infant  as  dependent  on  service  of,  2039. 
postponement  of  trial  to  permit,  2024,  2025. 
procedure  where  served  on  only  part  of  defendants,  1707. 
service  after  issuance  of  attachment,  1385,  1386. 
person  on  whom  service  may  be  made,  738. 
service  on  a  natural  person,  738. 

infant,   738. 

person  adjudged  incompetent,  738. 

Code  rule  relating  to  both  infants  and  incompetents,  739, 
4087. 

married  women,  740. 

sheriffs,  740. 
person  designated  during  absence  from  state,  740. 


4564  INDEX- 

[references  are  to  pages.] 

SERVICE— Cont'd. 

domestic  private  corporation,  742,  4087. 
foreign  corporation,  744,  4088. 

person  designated  by  corporation,  745,  4088. 

cashier,  director  or  managing  agent,  747,  4088. 
New  York  city,  750. 
city  other  than  New  York  city,  750. 
unincorporated  association,  750. 
waiver  of  objections  by  appearance,  816. 
mailing  copy  of  summons,  complaint  and  order,  779. 
service  on  new  parties  brought  in  as  defendants,  426,  427. 
service  on  Sunday,  104. 
service  on  holiday,  105. 
service  on  part  of  defendants  as  affecting  pendency  of  action, 

46. 
amount  of  costs  for  serving,  2963. 
fee  for  serving  as  disbursement,  2990. 

IV.  Of  Particular  Papers  and  Orders. 

order  extending  time  to  answer,  940. 
order  to  examine  witness  to  perpetuate  testimony,  1726. 
order  appointing  guardian  ad  litem,  2048. 
papers  to  be  served  on  person  interpleaded,  1869. 
papers  on  making  arrest,  1337. 
subpoena  duces  tecum,  1969. 
subpoena,  1978. 

subpoena,  where  deposition  taken  for  use  without  state,  1773. 
undertaking  given  to  discharge  attachment,  1507. 
copy  of  exceptions  to  decision  or  report,  2389. 
decision  where  trial  without  a  jury,  2383. 
notice  of  trial,  1665. 

notice  of  time  and  place  for  examination  under  open  commis- 
sion, 1753. 
offer  to  allow  judgment,  1994. 
order  staying  proceedings,  1922. 
order  for  discovery  and  inspection,  1855. 
order  requiring  security  for  costs,  1901. 
injunction  order,  1586. 

order  for  examination  of  party  before  trial,  1806. 
draft  of  judgment  before  its  entry,  2771. 
notice  of  motion  to  vacate  judgment,  2828. 
papers  to  limit  time  to  serve  case,  2656. 
extension  of  time  to  serve  case,  2658. 
order  of  reference,  2580. 


index.  4565 

[references  are  to  pages.] 

SERVICE— Cont'd. 

notice  to  terminate  reference,  2628. 

order  for  examination  in  supplementary  proceedings,  3294. 

injunction  order,  3304. 

warrant  of  arrest.  3310. 
notice  of  appeal,  3721. 
notice  to  limit  time  to  appeal,  3689. 
undertaking  to  stay  proceedings  pending  appeal,  3764. 
record  on  appeal,  3804. 
briefs,  3809,  3811. 

SERVICES  (see  "Master  and  Servant,"  "Work  and  Labor"). 

SET-OFF  (see,  also,  "Counterclaim  and  Set-Off"), 

attorney's  lien  as  subject  to  set-off  between  parties,  303. 
of  costs,  3043. 

right  to  off-set  judgments  as  precluding  receiver  in  supplementary 
proceedings,  3352. 

SETTLEMENT   (see,  also,  "Compromise,"  "Accord  and  Satisfaction"), 
as  affecting  attorney's  lien,  297. 
by  acceptance  of  offer  to  allow  judgment,  1997. 
power  of  guardian  ad  litem,  2051. 
amount  of  costs  on,  2962. 

prolonging  litigation  after,  to  determine  right  to  costs,  2904. 
vacating  judgment  entered  after,  2817. 
of  case,  2670. 
of  form  of  judgment,  2772. 

SEVERANCE  OF  ACTIONS, 

on  admission  on  part  of  plaintiff's  claim,  1702,  4139. 

on  death  of  a  defendant,  1706. 

on  death  of  co-defendant  jointly  and  severally  liable,  2095,  2096. 

on  issues  of  law  and  fact  arising  as  to  different  causes  of  action, 

1707. 
where  defendants  are  severally  liable,  1707,  4139. 
where  causes  of  action  are  improperly  united,  1709. 
judgment  on  part  of  issues,  2767. 
costs  of  both  actions  as  matter  of  right,  2920. 

SHAM  PLEADINGS, 
definition,  1076. 

what  pleadings  may  be  stricken  out  as  sham,  1076,  4127. 
sham  denials,  1076,  4127. 
sham  defenses,  1077,  4127. 
motion  and  order,  1078. 
striking  out  sham  answer  or  defense,  1075. 


45G6  INDEX- 

[references  are  to  pages.] 
SHERIFF, 

compelling  performance  of  duties,  312. 

duties  on  termination  of  term  of  office,  312. 

liabilities,  313. 

coroner  as,  314. 

disabilities  connected  with  office,  313. 

trial  of  claims  to  property,  313. 

certificate  of  service  of  summons,  784. 

certificate  of  service  of  papers,  665. 

duty  in  serving  process,  736. 

time  within  which  to  bring  action  against,  478. 

right  to  intervene  in  action  against,  432. 

neglecting  to  execute  process  as  civil  contempt,  325. 

time  within  which  to  sue,  483. 

duty  to  allow  process  server  access  to  prisoner,  654. 

duty  to  deliver  papers  served  on  him  to  prisoner,  654. 

election  of  remedies  in  action  against,  44. 

necessity  of  demand  before  suing  sheriff,  80. 

mode  of  serving  summons  in  action  against,  740. 

changing  place  of  trial  in  action  against,  1938. 

effect  of  death  or  removal  pending  suit  by  or  against,  2079. 

liability  as  bail,  1361. 

liability  of  bail  to  sheriff,  1362. 

liability  for  wrongful  attachment,  1544. 

powers  and  duties  in  making  a  levy,  1471. 

preference  on  calendar  of  action  by  or  against,  1679. 

deed  on  execution  sale,  see  "Execution  Against  Property." 

duty  to  conduct  judicial  sales,  3220. 

duty  to  personally  conduct  execution  sale,  3129. 

power  to  purchase  at  execution  sale,  3131. 

duties  is  supplementary  proceedings,  3434. 

duty  to  execute  deed  after  execution  sale  as  personal,  3157. 

duties  on  delivery  of  execution  to,  3088. 

duties  on  execution  of  writ  of  inquiry,  2863. 

disqualification  to  act  as  affecting  proceedings  on  execution,  3058. 

liability  for  escape,  3210. 

liability  for  failure  to  return  execution,  3187. 

custody  of  papers  to  redeem  from  execution  sale,  3179. 

fees  as  disbursements,  2988. 

taxation  of  fees,  3050. 

mode  of  collecting  fees,  3051. 

trial  of  title  to  property  levied  on,  3123. 

SHIPPING, 

jurisdiction  to  enforce  admiralty  liens,  138,  139. 


index.  4567 

[references  are  to  pages.] 

SHORT  CAUSE  CALENDAR   (see  "Calendars"). 

SICKNESS   (see  "Illness"). 

SIGNATURE, 

writs  and  powers  in  general,  119. 

pleadings,  822. 

papers  in  general,  649. 

notice  of  appearance,  809. 

affidavits,  538,  539. 

notice  of  motion,  587. 

order,  620. 

summons,  720. 

bond  or  undertaking,  676. 

admission  of  service  of  papers,  666. 

attachment,  1460. 

decision,  2379. 

deposition  taken  outside  of  state,  1757. 

deposition  where  party  examined  before  trial,  1813. 

inventory  of  property  attached,  1474. 

offer  to  allow  judgment,  1991,  1993. 

order  of  arrest,  1336. 

petition  for  discovery  and  inspection,  1849. 

case,  2675. 

demand  of  notice  of  execution  of  reference  or  writ  of  inquiry,  2862. 

execution,  3090. 

indorsement  as  equivalent  to,  3090. 
inquisition,  2864. 
judgment,  2758. 

of  judgment  as  entry,  2781. 
judgment  roll,  2787. 
requests  to  find,  2613. 
report  of  referee,  2614. 

testimony  of  witnesses  on  reference  to  report  facts,  2607. 
testimony  in  supplementary  proceedings,  3319. 
statement  confessing  judgment,  2886. 
notice  of  appeal,  3718. 
notice  to  limit  time  to  appeal,  3692. 

SISTER  STATES, 

decision  of,  as  binding  courts  of  this  state,  116,  117. 
pendency  of  action  in,  as  matter  of  abatement,  51. 

SLANDER  (see  "Libel  and  Slander"). 

SPECIAL    FINDINGS, 
by  jury,  2355. 


4568  INDEX- 

[references  are  to  tages.] 

SPECIAL  PROCEEDINGS, 

general  rules,  12. 

as  distinguished  from  motion,  13. 

what  are,  14,  15,  3614,  4044. 

power  of  county  judge,  191. 

substitution  of  officers,  226,  227. 

filing  papers,  650. 

abatement,  2071. 

examination  of  witness  outside  of  state,  1732. 

security  for  costs,  1883. 

subpoena,  1983. 

trial  by  jury  as  preserved  by  constitution,  2139. 

supplementary  proceedings,  3255. 

motions  by  or  against  purchaser  at  judicial  sale,  3239. 

costs  as  dependent  on  statute,  2901. 

costs  as  discretionary,  2933. 

double  costs,  2990. 

additional  allowance  of  costs,  3005. 

collection  of  costs  by  contempt  proceedings,  3042. 

when  order  is  final,  3615. 

right  to  appeal  to  court  of  appeals  from  final  order,  3613. 

right  to  appeal  to  appellate  division,  3638,  3646. 

costs  on  appeal,  3944. 

SPECIAL  TERM  (see,  also,  "Supreme  Court"), 

derivation  of  name,  165. 

difference  between  terms  of  court  and  special  term,  110. 

jurisdiction,  166-170. 

review  of  orders  of  the  general  terms,  158. 

duty  to  follow  decision  of  appellate  division,  116. 

adjournment  to  chambers,  170. 

to  amend  pleadings  where  cause  pending  before  referee,  1037. 

discretion  of  referee  as  to  amendment  of  pleading  as  reviewable  at, 

1043. 
place  for  making  motion,  599-601. 
motion  to  correct  verdict,  2367. 
transfer  of  case  to  trial  calender,  1661. 
motion  for  new  trial  at,  2727. 

SPECIFIC  PERFORMANCE, 

jurisdiction  where  lands  lie  in  another  state,  128. 
petition  to  compel  as  special  proceeding,  17. 
time  within  which  to  bring  action,  470,  472. 
place  of  trial,  350,  351. 


index.  4:>  09 

[references  are  to  pages.] 
SPECIFIC  PERFORMANCE— Cont'd. 

trial  by  jury,  2151. 

costs  as  discretionary,  2927. 

basis  of  computing  extra  allowance,  3016. 

enforcing  payment  of  bid  at  judicial  sale,  3240. 

SPLITTING  CAUSE  OF  ACTION, 
based  on  contract.  54,  4047. 
founded  on  tort,  55. 

STARE  DECISIS, 

rule  of,  114  et  seq. 

STATE   (see,  also,  "Sister  States,"  "Foreign  Government"), 
jurisdiction  of  actions  by  or  against,  143. 

statute  of  limitations  as  applicable  to  actions  against,  454,  455. 
payment  of  costs  awarded  against,  3043. 

STATEMENT, 

confession  of  judgment,  2881. 

STATUTE    (see,  also,  "Foreign  Statutes"), 
table  of  statutes  cited,  see  front  of  volume, 
rules  of  court  in  violation  of,  107. 
repeal  of  statutes  conferring  jurisdiction,  124. 
time  to  bring  action  to  recover  on  statutory  liability,  475. 
necessity  of  pleading,  832. 
pleading  private  statutes,  849. 

requiring  bill  of  particulars  in  actions  based  on,  869, 
retroactive  effect  of  statute  of  limitations,  449,  450. 
subsequent  statute  as  newly  discovered  evidence,  2704. 

STATUTE  OF  FRAUDS, 

ground  of  demurrer,  1000. 

necessity  of  pleading  as  a  defense,  955. 

anticipating  defense  in  complaint,  925. 

memorandum  of  judicial  sale,  3225. 

as  applicable  to  execution  sale  of  personalty,  3132. 

STATUTE  OF  LIMITATIONS, 

limitations  at  common  law,  438. 

limitations  in  equity,  439. 

cases  not  witbin  the  statute,  441,  4072,  4073. 

applicability  of  statute  to  defenses  and  counterclaims,  443. 

execution  after  action  on  judgment  is  barred,  3072. 


4570  INDEX. 

[references  are  to  pages.] 
STATUTE  OF  LIMITATIONS— Cont'd, 
nature  and  effect  of  statutes,  444. 

as  distinguished  from  limitations  under  statutes  giving  rights: 
of  actions,  445,  4073. 

as  distinguished  from  limitations  by  contract,  445,  4073. 

as  distinguished  from  presumption  of  payment,  445. 
what  law  governs,  446,  4073. 
constitutionality  of  statutes.  448,  4073. 
retroactive  effect  of  statute,  449. 
construction  in  general,  450. 
bar  against  one  remedy  as  barring  other  remedies,  451. 

bar  of  debt  as  affecting  security,  451. 
computation  of  time,  453. 
extension  of  time  by  order,  453. 
persons  who  may  rely  on  the  statute,  453,  4073. 
against  whom  statute  runs,  454. 
waiver  of  right  to  rely  on  statute,  455. 
anticipating  defense  in  complaint,  925. 
necessity  of  pleading  as  a  defense,  955. 
right  to  amend  answer  so  as  to  set  up,  1024. 
ground  of  demurrer,  1001. 

power  to  set  up  by  amendment  before  trial,  1028. 
allowance    of   service    of   summons    by    publication    where   statute 
otherwise  interferes,  761. 

I.  Limitations  Applicable  to  Particular  Actions. 

A.  Actions  for  the  Recovery  of  Real  Property,  456. 

actions  by  people,  456. 

action  by  party  other  than  people,  458. 

personal  disabilities  extending  time  to  sue,  465. 

B.  Actions  Other  Than  for  the  Recovery  of  Real  Property,. 

466. 

twenty  years,  466. 

actions  based  on  final  judgment  or  decree,  466,  4074. 

actions  to  redeem  real  property  from  a  mortgage,  468^ 

actions  on  sealed  instruments,  468. 
ten  years,  470,  4074. 
six  years,  474. 

actions  on  simple  contracts,  474,  4074. 

actions  to  recover  on  statutory  liability,  475. 

actions  for  injuries  to  person  or  property,  475. 

actions  to  recover  chattel,  476. 


INDEX.  4571 

[references  are  to  pages.] 

STATUTE  OF  LIMITATIONS— Cont'd. 

actions  based  on  fraud,  476. 

actions  to  establish  will,  477. 

actions  on  judgments  of  courts  not  of  record,  477. 
five  years,  477. 
three  years,  478. 

actions  against  officers,  478. 

actions  for  penalty  or  forfeiture,  479,  4075. 

actions  against  trustees,  481. 
personal  injury  actions,  481,  4075. 
two  years,  482,  4076. 
one  year,  483,  4076. 

II.  When  Statute  Begins  to  Run. 

time  of  wrongful  act  or  time  when  damages  accrue,  486,  4076. 
continuing  or  recurring  cause  of  action,  487. 

actions  for  personal  injuries,  488. 

actions  for  failure  to  file  report,  488. 
actions  against  trustees,  488,  4076. 
demand,  490. 

claims  against  person  acting  in  a  fiduciary  capacity,  491, 
4077. 

deposits  and  deliveries  of  personal  property,  492,  4077. 
ignorance  or  concealment  of  facts,  494,  4077. 

actions  based  on  fraud,  495,  4077. 
actions  on  mutual  accounts,  496,  4078. 
actions  for  breach  of  covenant,  498. 
actions  to  establish  will,  499. 
actions  against  executors  or  administrators,  499. 
actions  on  judgments,  499. 
actions  for  conversion,  499,  4078. 
action  for  money  had  and  received,  500. 
action  by  principal  for  misconduct  of  agent,  500. 
actions  for  services,  500. 

cause  of  action  accruing  between  the  death  of  a  testator  or  in- 
testate and  the  grant  of  letters,  501. 

III.  Postponement  and  Suspension  of  Statute,  502. 

stay  by  injunction,  order  or  statutory  prohibition,  502. 

absence  from  the  state,  505,  4078. 

death  as  suspending  running  of  limitations,  507. 

death  of  person  liable  without  the  state,  507. 

death  of  person  liable  within  the  state,  508. 

death  of  person  entitled  to  sue,  509. 


1-572  INDEX. 

[references  are  to  pages.] 
STATUTE  OF  LIMITATIONS— Cont'd. 

new  action  after  reversal,  dismissal  or  non-suit,  509,  4078. 
persons  under  disabilities,  511,  4078. 
married  women,  512. 

disability  must  exist  when  right  of  action  accrues,  512. 
cumulative  disabilities,  512. 
war,  512. 
termination  of  action   by   dismissal,   discontinuance  or  death, 

limitations  applicable  to  defense  or  counterclaim,  513. 
revocation  of  submission  to  arbitration  or  stay  of  remedy  on 
award,  513. 

VI.  Time  of  Commencing  Action. 

attempts  equivalent  to  commencement,  515,  4078. 
application  of  Code  rules  to  contract  limitations,  517. 

V.  Acknowledgment  or  Xew  Promise. 

in  what  causes  of  action  effective,  518. 
necessity  of  signed  writing,  518. 
time  of  acknowledgment  or  promise,  519. 
who  may  acknowledge  or  promise,  519,  4078. 
to  whom  made,  520. 

assignment  of  claim  after  new  promise,  520. 
sufficiency  of  promise  or  acknowledgment,  520,  4078. 

intention  to  pay,  522,  4079. 

definiteness,  523,  4079. 

qualifications  and  conditions,  523. 

voluntary  or  involuntary  act,  524. 

consideration  of  promise,  524. 

construction  of  writing,  525. 
effect,  525. 

VI.  Part  Payment. 

common  law  rules  govern,  525. 

payment  on  specific  debt  and  application  of  payments,  526,  4079. 

part  payment  as  distinguished  from  payment  in  full,  527,  4079. 

involuntary  payments,  528. 

by  whom  made,  528,  4079. 

partners,  529. 

principal  and  surety,  530. 
to  whom  made,  530. 
medium  of  payment,  531. 
time  of  payment,  531. 
proof  of  payment,  531,  4080. 


INDEX.  457& 

[references  are  to  pages.] 

STAY  OF  PROCEEDINGS, 

power  of  judge  out  of  court,  234. 

power  of  county  judge,  188. 

as  suspending  running  of  statute  of  limitations,  502-505. 

on  granting  order  for  bill  of  particulars,  876. 

until  compliance  with  order  for  bill  of  particulars,  880. 

order  as  stay,  628. 

stay  of  order  to  show  cause,  594. 

issuance  of  execution  in  violation  of  as  releasing  sureties,  683. 

difference  between  stay  and  consolidation  of  actions,  1690. 

grounds,  1911,  4149. 

failure  to  pay  costs  of  former  action,  1912,  4149. 

failure  to  pay  costs  as  required  by  order,  1915,  4149,  4150. 

another  action  or  proceeding  pending,  1916,  4150. 

insolvency  of  defendant,  1919. 
on  examination  of  party  before  trial,  1812. 
on  granting  order  of  arrest,  1336. 
on  ordering  security  for  costs,  1901. 
to  move  to  change  place  of  trial,  1944. 
on  granting  motion  for  discovery,  1845,  1846,  1852,  1854. 
application,  1920,  4150. 

discretion  of  court,  1922. 

order,  1922. 
effect  of  stay,  1923. 

effect  on  appeal  from  judgment  where  attachment  granted,  1529. 
excuse  for  failure  to  proceed  with  action,  2127,  2128. 
security  on  staying  proceedings  in  action  for  money  only,  1580. 
violation  of  stay  as  ground  for  vacating  attachment,  1516. 
on  execution,  3191. 
of  supplementary  proceedings,  3267. 
of  judicial  sale,  3226. 

for  informality  in  entering  judgment,  2784. 
stipulation  for,  as  condition  of  opening  default  judgment,  2876. 
by  preparation  or  settlement  of  case,  2682. 
by  motion  for  new  trial,  2686. 

by  motion  for  new  trial  after  interlocutory  judgment,  2726. 
as  discharge  of  imprisoned  debtor,  3212. 

notice  to  sureties  on  appeal  bond  of  suspending  of  lien  of  judg- 
ment, 2803. 
of  appeal,  3598. 

STAY  OF  PROCEEDINGS  PENDING  APPEAL, 
right  to  stay  and  how  obtained,  3739. 
appeal  to  court  of  appeals,  3740. 
appeal  to  appellate  division  from  supreme  court,  3740. 


4574  index. 

[references  are  to  pages.] 

STAY  OF  PROCEEDINGS  PENDING  APPEAL— Cont'd. 

appeal  to  supreme  court  from  an  inferior  court,  3741. 
appeal  from  orders  made  in  special  proceedings,  3742. 
deposit  in  lieu  of  undertaking,  3742. 

stay  pending  application  for  leave  to  appeal  to  the  court  of  ap- 
peals, 3742. 
power  of  court  to  limit  or  dispense  with  security,  3743. 
waiver  of  security,  3744. 
supplying  omissions,  3745. 

I.  Security  Required  by  Code. 

appeal  from  judgment  for  the  recovery  of  money  only,  3746. 

new  undertaking,  3747. 
appeal  from  judgment  for  assignment  or  delivery  of  personal 

property,  3748. 
appeal  from  judgment  for  recovery  of  a  chattel,  3748. 
appeal  from  judgment  directing  execution  of  instrument,  3749. 
appeal  from  judgment  for  sale,  or  delivery  of  possession,  of 

real  property,  3750. 
appeal  from  judgment  of  affirmance,  3753. 
appeal  from  judgment  for  specific  performance  or  setting  aside 

conveyance,  3754. 

II.  Order  Granting  Stay. 

necessity,  3755. 

power  of  court  or  judge,  3755. 

motion  papers,  3756. 

propriety  of  granting  a  stay,  3757. 

orders,  3759. 

retroactive  effect,  3761. 

HI.  General  Rules  as  to  the  Undertaking. 
form  and  contents,  3761. 

affidavits  of  sureties,  3762. 

acknowledgment  and  certification,  3762. 

one  or  more  instruments,   3762. 
insufficient  undertakings,  3763. 
amendment,  3763. 
filing,  3764. 
service,  3764. 

IV.  Sureties. 

who  may  be,  and  number,  3765. 
exception  and  justification,  3765. 


index.  4575 

[references  are  to  pages.] 

STAY  OF  PROCEEDINGS  PENDING  APPEAL— Cont'd. 

new  undertaking  where  sureties  become  insolvent,  3769. 
court  in  which  motion  must  be  made,  3770. 
contents   of   new   undertaking,   3770. 
order  as  releasing  sureties  from  liability,  3770. 
effect  of  failure  to  comply  with  order,  3771. 

V.  Liability  on,  and  Enforcement  of.  Undertaking. 

liability  in  general,  3771. 

what  constitutes  affirmance  to  make  sureties  liable,  3772. 

what  constitutes  reversal  to  discharge  sureties,  3772. 

liability  as  between  sureties  on   different  undertakings,  3772. 

liability  on  common-law  undertaking,  3773. 

discharge  of  sureties  by  extrinsic  events,  3774. 

extension  of  time,  3775. 

change  in  the  statutes,  3775. 

discharge  in  bankruptcy,  3775. 
remedy  by  action,  3775. 

exhausting   remedy  by   enforcing  judgment  as  condition  pre- 
cedent, 3775. 
notice  of  entry  of  judgment  or  order  as  condition  precedent, 
3775. 

sufficiency  of  notice,  3776. 

who  must  be  served,  3776. 

second  notice,  3776. 

waiver  of  failure  to  serve,  or  defects  in,  notice,  3776. 
right  to  sue  as  precluded  by  appeal  to  court  of  appeals,  3778. 
complaint,  3778. 
defenses,  3779. 

VI.  Effect  of  Stay. 

on  appeal  from  judgment  for  rent,  3782. 

on  appeal  from  judgment  awarding  injunction,  3782. 

on  appeal  to  court  of  appeals,  3782. 

power  to  discharge  levy  on  personal  property,  3782. 

power  to  suspend  lien  of  judgment  appealed  from,  3783. 

duration  of  stay,  3783. 

STENOGRAPHERS, 

appointment,  removal,  qualifications  and  oath,  314. 

duties,  314. 

fees,  314. 

implied  power  of  attorney  to  hire  stenographer,  271. 

contempt  in  refusing  to  furnish  minutes  at  statutory  rate,  325. 


4;,  to  index. 

[KEFEKENCES  ake  to  pages.] 

STENOGRAPHERS— Cont'd, 
fees  as  disbursements,  29S5. 

notes  as  judge's  minutes  on  motion  for  new  trial,  2720. 
right  of  party  to  use  of  minutes  to  prepare  case,  2658. 
use  of  minutes  on  settlement  of  case,  2672. 
death  as  ground  for  new  trial,  2655. 
omission  to  note  exception,  ground  for  resettlement  of  case,  2681. 

STIPULATIONS   (see,  also,  "Agreement,"  "Submission  of  Controversy 
on  Admitted  Facts"), 
implied  power  of  attorney  to  make,  269,  270. 
pleading  by  supplemental  answer,  1054. 
necessity  for  incorporation  in  order,  621. 
to  discontinue,  2114. 

for  examination  of  party  before  trial,  1778. 
to  obtain  examination  of  witness  outside  of  state,  1731. 
to  take  testimony  of  witness  to  perpetuate  it,  1722. 
vacation  of  order  of  arrest  on  stipulation  not  to  sue,  1349. 
effect  where  deposition  introduced  in  evidence,  1766. 
conditions  in  order  permitting  change  of  place  of  trial,  1962. 
as  waiving,  or  to  avoid,  change  of  place  of  trial,  1929,  1931,  1937. 
to  show  consent  to  reference,  2553. 

naming  referee,  2555. 
as  condition  of  awarding  new  trial,  2744. 
as  affecting  finality  of  judgment,  2754. 
for  hearing  of  exceptions  by  appellate  division,  2723. 
vacation  of  judgment  entered  in  violation  of,  2816. 
waiver  of  costs,  2903. 
to  increase  costs,  2903. 

validity  on  opening  of  default  judgment,  2878. 
affecting  right  to  take  judgment  by  default,  2871. 
waiving  settlement  and  signature  of  case,  2670. 
substitute  for  certification  of  case,  2676. 
as  affecting  award  of  extra  allowance,  2999. 
extending  time  to  appeal,  3687. 
for  judgment  absolute,  on  appeal  to  court  of  appeals,  3618. 

STOCKHOLDER    (see,  also,  "Corporations"), 

death  of  as  abating  action  against  for  corporate  debts,  2068. 
disqualification  as  jurors  where  corporation  is  a  party,  2193. 

STRIKING  OUT, 

amended  pleading,  1025. 

irrelevant,  redundant  or  scandalous  matter,  1066,  4125. 
motion  and  order,  1068. 


index.  4577 

[references  are  to  pages.] 

STRIKING  OUT— Cont'd. 

motion  to  strike  out  evidence,  2271. 

who  may  move,  2272. 

discretion  of  judge — objection  as  condition  precedent,  2273. 

time,  2274. 

stating  grounds,  2275. 

asking  for  too  much,  2275. 

decision  of  motion,  2275. 

effect  of,  2276. 
of  evidence  because  of  refusal  to  testify,  2232. 
of  evidence  where  witness  does  not  appear  for  cross-examination, 

2242. 
power  of  referee  to  strike  out  evidence,  2595. 
of  pleading  for  failure  to  obey  subpoena,  1979. 

of  answer  or  reply  for  refusing  to  obey  order  for  inspection,  1856. 
of  pleading  for  failure  to  obey  order  to  produce  paper  on  trial,  1871. 
correction  of  judgment,  2809. 

STRUCK  JURY, 

when  allowed,  2054,  4154. 
motion  papers,  2055. 

notice  of  motion,  2056. 
order,  2056. 

notice  to  be  given  by  party  obtaining  order,  2056. 
mode  of  striking  jury,  2056. 

where  clerk  or  commissioners  of  jurors  is  interested,  2057. 
notice  to  jurors  to  attend,  2058. 
formation  of  jury  and  subsequent  procedure,  2058. 
expense,  2058. 

SUBJECT  MATTER, 

jurisdiction  of,  122  et  seq. 

SUBJECT  OP  ACTION, 
definition,  53,  68,  1568. 

place  of  trial  as  governed  by  location  of,  348. 
cause  of  action  connected  with  subject  as  counterclaim,  979. 
who  have  interest  in,  within  rule  as  to  joinder  of  plaintiffs,  402, 

403. 
interest  in  to  permit  intervention  as  party,  430,  431. 

SUBMISSION  OF  CONTROVERSY  ON  ADMITTED  FACTS, 
nature  of  controversy  to  be  submitted,  33. 
parties,  34,  4044. 

N.  Y.  Prac— 287. 


45TS 


INDEX. 


[references  are  to  pages.] 
SUBMISSION  OF  CONTROVERSY  ON  ADMITTED  FACTS— Cont'd, 
requisites  and  sufficiency  of  submission,  34,  4045. 

form  of  statement  of  facts,  35. 

affidavit,  36. 

form  of  affidavit,  36. 
filing  of  papers  and  subsequent  proceedings,  36. 

hearing  and  determination,  36,  4045. 

dismissal  of  submission,  37. 
judgment,  38,  4045. 
nature  of  proceedings,  18. 

power  to  appoint  guardian  ad  litem  for  infant,  89. 
costs,  2933. 
additional  allowance  of  costs,  3006. 

SUBPOENA, 

general  power  of  courts  of  record  to  issue,  118. 

power  of  county  judge  to  issue,  190. 

necessity,  1977. 

contents,  1977. 

service,  1978. 

proof  of  service,  1978. 

penalty  for  disobedience,  1979. 

subpoena  ticket,  1981. 

in  proceedings  other  than  in  an  action,  1983. 

to  examine  party  before  trial,  1778. 

absence  of  witness  as  ground  for  continuance  where  no  subpoena 

served,  2026. 
where  deposition  is  taken  within  the  state  for  use  without,  1772. 
expense  of  serving  as  disbursement,  2990. 
to  attend  before  referee,  2591,  2605. 
in  supplementary  proceedings,  3315,  3320. 

SUBPOENA  DUCES  TECUM   (see,  also,  "Books"), 

service,  1969. 

effect  of  failure  or  refusal  to  obey,  1971. 

to  produce  books  and  papers  of  corporation,  1972. 

books  and  papers  in  custody  of  public  officer,  1972. 
relief  from  by  order,  1973. 
removal  of  records,  1973. 

issuance  on  examination  in  aid  of  attachment,  1502. 
ivhere  deposition  is  taken  within  the  state  for  use  without,  1772. 
inspection  where  information  can  be  obtained  by,  1843,  1844. 
issuance  by  referee,  2591. 

in  supplementary  proceedings,  3316. 


INDEX.  4579 

[references  are  to  pages.] 

SUBSCRIPTION  (see  "Signature"). 

SUBSTANTIAL  RIGHTS, 

orders  affecting  as  appealable  to  appellate  division,  3652. 

SUBSTITUTED  SERVICE  OP  SUMMONS, 

the  statutes,  751. 
when  allowable,  751,  4089. 
proof  to  obtain  order,  753,  4089. 
order,  754. 

who  may  make,  754. 

vacating  or  setting  aside,  755. 

collateral  attack,  755. 
filing  order  and  papers,  756. 
service,  756. 
effect,  756. 
power  of  county  judge  to  order,  190. 

SUBSTITUTION, 

of  attorneys,  273  et  seq. 

of  officers  in  special  proceedings,  226,  227. 

of  indemnitors  in  action  against  officer,  1548. 

of  party  as  changing  nature  of  action,  2152. 

of  party  acquiring  interest  or  on  whom  liability  devolves,  2072. 

of  other  property  for  property  attached,  1485. 

of  parties  on  appeal,  3673. 

SUCCESSOR  IN  INTEREST, 

definition,  2087. 

SUMMARY  PROCEEDINGS, 

power  of  county  judge,  191. 

to  recover  possession  of  lands  sold  on  execution,  3151. 

peremptory  challenges  to  jury,  2191. 

security  for  costs,  1884. 

trial  by  jury  as  preserved  by  constitution,  2139. 

SUMMARY  REMEDIES, 

of  client  against  his  attorney,  282  et  seq. 
SUMMING  UP  BY  COUNSEL, 

right,  2303. 

waiver,  2303. 
who  may  sum  up,  2303. 
who  entitled  to  final  summing  up,  2303. 
reading  law  to  the  jury,  2304. 


4580  INDEX. 

[references  are  to  pages.] 

SUMMING  UP  BY  COUNSEL— Cont'd, 
scope  of  remarks,  2305. 

reference  to  pleadings,  2305. 

matters  not  in  evidence,  2306. 
time  allowed  for  argument,  2306. 
objections  and  exceptions,  2307. 
effect  of  improper  statements,  2307. 

SUMMONS    (see,  also,  "Service,"   "Substituted  Service  of  Summons," 
"Publication,"  "Process,"  "Supplemental  Summons"), 
service  of,  see  "Service  of  Summons." 
definition  of  process  and  summons,  711. 

original,  mesne,  and  final  process,  712. 
nature  and  object  of  summons,  712. 
necessity,  712. 

summons  as  commencement  of  action,  713. 
issuance,  714,  1386. 
contents,  715. 

name  of  court,  715. 

names  of  parties,  715,  40S6. 

name  of  county  in  which  trial  is  desired,  718,  4068. 

provisions  as  to  time  to  answer,  718. 

signature,  720. 

date,  721. 

seals,  721. 
indorsements  on  summons  in  penal  actions,  722. 

necessity,  722. 

sufficiency,  722. 

effect  of  failure  to  indorse,  724. 
indorsement  on  summons  in  matrimonial  actions,  724. 
supplemental  summons,  427,  725,  2099. 
conformity  of  complaint  to,  929. 
as  determining  nature  of  action,  28. 
manner  of  raising  objection  that  infant  plaintiff  appears  without 

guardian  ad  litem,  92. 
delivery  as  commencement  of  action  to  stop  running  of  limitations, 

515-517. 
want  of  as  cured  by  verdict,  report  or  decision,  703. 
right  to  demur  to,  995. 

power  of  county  judge  to  punish  refusal  to  obey,  189. 
validity,  signed  by  one  not  an  attorney,  242. 
as  aid  to  construction  of  pleadings,  907. 
vacating  judgment  for  defects  in,  2S1G. 
vacating  attachment  for  defects  in,  1515. 


INDEX.  4581 

[references  are  to  pages.] 
SUMMONS— Cont'd. 

vacating  arrest  for  defects  in,  1347. 

amendment  of  judgment  where  no  summons  served,  2810. 

inclusion  in  judgment  roll,  2789. 

SUNDAY   (see,  also,  "Holidays"), 

judicial  proceedings  on  Sunday,  103,  104. 

service  of  papers  on  Sunday,  664. 

service  of  summons  on  Sunday,  733. 

exclusion  in  computing  time,  695. 

receiving  verdict  on,  2357. 

levy  of  execution  on,  3115. 

order  returnable  on  Sunday  as  a  nullity,  3290. 

SUPERSEDEAS  (see,  also,  "Stay  of  Proceedings"), 
to  obtain  discharge  from  arrest,  1351. 

SUPERVISOR, 

costs  in  action  against,  2938. 

SUPPLEMENTAL  PLEADINGS, 

necessity,  1051. 

as  distinguished  from  amended  pleadings,  1051,  4123. 
leave  of  court,  1051,  4123. 
supplemental  complaint,  1053,  4123. 
supplemental  answer,  1054,  4123. 
application,  1056,  4123. 
order,  1058,  4123. 
contents  of,  1059,  4123. 

amendments,  1059. 
proceedings  in  cause  after,  1059. 
supplemental  reply,  1056. 

necessity  where  new  parties  are  brought  in  after  trial,  427. 
extension  of  time  in  which  to  file  supplemental  complaint,  694. 
right  to  demur  to,  995. 
right  to  amend  as  of  course,  1022. 

bringing  in  new  parties  on  death,  etc.,  of  party,  2099. 
supplemental  complaint  on  allowing  interpleader,  1868. 
on  substitution  of  party  pending  suit,  2076,  2086. 

SUPPLEMENTAL  SUMMONS  (see  "Summons"). 

SUPPLEMENTARY  PROCEEDINGS, 
special  proceedings,  3255. 
three  remedies,  3255. 

order  against  judgment  debtor  before  return,  3256. 

order  against  third  person,  3256. 


4582  INDEX. 

[references  are  to  pages.] 
SUPPLEMENTARY  PROCEEDINGS— Cont'd, 
election  of  remedies,  44,  3257. 
as  cumulative  remedy,  41. 
power  of  attorney  to  institute,  2G1,  307. 
persons  entitled,  3258. 
persons  liable,  3259. 

corporations,  3259. 
time,  3260. 
property  which  can  be  reached,  3261. 

exempt  property,  3262. 

property  held  in  trust,  3262. 

earnings,  3263. 

joint  property,  3265. 
successive  examinations,  3266. 
stay  of  proceedings,  3267. 
review  of  orders,  3267. 

appeal,  3268. 
collateral  attack,  3269. 

before  what  judge  proceedings  had,  191,  234,  3269. 
continuance,  3270. 

priority  of  lien  over  attorney's  lien,  303. 
judgments  on  which  proceedings  may  be  based,  3272. 

judgment  rendered  on  appearance  or  personal  service,  3273. 

amount,  3273. 

justice  of  the  peace  judgment,  3274. 

judgment  of  United  States  court,  3274. 

judgment  of  appellate  court,  3274. 
to  enforce  orders,  3274. 
as  precluding  second  execution,  3086. 
pendency  as  precluding  leave  to  issue  execution,  3071. 
on  execution  issued  after  five  years  without  leave  of  court,  3069. 

I.  Issuance  and  Return  of  Execution. 

sufficiency  and  validity  of  execution,  3275. 

execution  issued  without  leave  of  court,  3275. 
county  to  which  execution  must  be  issued,  3276. 

county  where  debtor  has  place  of  business,  3276. 

county  of  residence,  3277. 
return  of  execution,  3277. 

when  remedy  by  execution  is  exhausted,  3278. 

II.  Procedure  to  Obtain  Examination. 

notice  of  proceedings,  3279. 
general  rules  as  to  affidavits,  3279. 

necessity,  3280. 

who  may  make,  3280. 


index.  4583 

[references  are  to  pages.] 

SUPPLEMENTARY  PROCEEDINGS— Cont'd. 

title,  3280. 

information  and  belief,  3280. 

showing  authority  of  deponent,  32S0. 

statements  as  to  judgment,  3281. 

statements  as  to  execution,  3282. 

statement  as  to  residence,  3283. 

statement  as  to  previous  applications,  3283. 
affidavit  for  examination  of  judgment  debtor  after  return,  3283. 
affidavit   for    examination   of   judgment   debtor   before   return, 

3285. 
affidavit  for  examination  of  third  person,  3286. 
affidavit  for  second  examination,  3288. 

III.  Order  to  Appear  for  Examination. 
discretion  of  judge,  3289. 

title,  3289. 
contents,  3289. 

time  of  examination,  3290. 

place  of  examination,  3290. 

judge  before  whom  to  appear,  3291. 
order  for  examination  of  third  person,  3293. 
order  for  second  examination,  3294. 
service,  3294. 

proof  of  service,  3296. 
filing,  3296. 
effect,  3297. 
vacation  or  modification,  3298. 

grounds,  3298. 

time  for  motion,  3302. 

moving  papers,  3302. 

notice  of  motion,  3302. 

effect,  3303. 

opening  vacating  order,  3303. 
appeal,  3303. 
collateral  attack,  3303. 

IV.  Injunction. 
time,  3303. 

who  may  make,  3304. 

affidavits,  3304. 

contents,  3304. 

service,  3304. 

effect,  3305. 

vacating  order,  3305. 

what  constitutes  a  violation  of  order,  3305. 


4584  index. 

[references  are  to  pages.] 
SUPPLEMENTARY  PROCEEDINGS— Cont'd. 

V.  Warrant  of  Arrest. 

motion  papers,  3308. 
warrant,  3309. 

service,  3310. 
undertaking,  3311. 
vacation  or  modification,  3312. 

VI.  Examination. 

judge  or  referee,  3312. 
place  of  examination,  3312. 
appointment  of  referee,  3313. 
oath  of  referee,  3314. 
powers  of  referee,  3315. 

issuance  of  subpoena,  3315. 

subpoena  duces  tecum,  3316. 

administering  oath  to  witnesses,  3316. 

adjournments,  3316. 

punishment  for  contempt,  3317. 
duties  of  referee,  3317. 

report,  3317. 
subscription  of  testimony,  3319. 
substitution  of  referee,  3319. 
effect  of  absence  of  refereee,  3319. 
waiver  by  appearance  before  referee,  3319. 
who  may  be  examined,  3320. 
who  must  be  examined,  3320. 
subpoena,  3320. 
oath,  3321. 
scope  of  examination,  3321. 

incriminating  questions,  3323. 
mode  of  examining,  3324. 

commission  to  take  testimony  out  of  state,  3324. 
reopening  examination,  3324. 
filing  examinations,  3325. 

VII.  Order  for  Payment  or  Delivery  of  Property.  , 
order  "permitting"  third  person  to  pay  sheriff,  3326. 

who  may  make,  3326. 

time  when  order  may  be  made,  3326. 

motion  papers,  3326. 

notice  of  motion,  3327. 

discretion  of  judge,  3327. 

effect  of  payment,  3327. 


INDEX.  4585 

[references  are  to  pages.] 
; SUPPLEMENTARY  PROCEEDINGS— Cont'd. 

order  "requiring"  payment  or  delivery,  3328. 
time,  3329. 

who  may  make,  3329. 
notice,  3329. 
contents  of  order,  3329. 
property  which  may  be  reached,  3331. 
duties  of  sheriff  receiving  property,  3334. 

VIII.  Contempt. 

who  may  punish,  3335. 
what  constitutes,  333,  3335. 

failure  to  appear,  3336. 

failure  to  produce  books,  3336. 

refusal  to  testify,  3337. 

perjury,  3337. 

violation  of  injunction  order,  3337. 

disobedience  to  order  to  deliver  or  pay  over,  3337. 
excuses  and  defenses,  3338. 
procedure,  3340. 

IX.  Costs. 

allowance  to  judgment  creditor,  3340. 

payment,  3341. 

procedure  to  procure,  3342. 

enforcement  of  collection,  3342. 
allowance  to  judgment  debtor  or  third  person,  3342. 

time,  3343. 
security  for  costs,  3344. 

X.  Dismissal  or  Discontinuance. 

dismissal,  3344. 
abandonment,  3344. 
discontinuance,  3345. 
notice  of  application,  3346. 

XI.  Appointment  of  Receiver. 

time,  3346. 

who  may  appoint,  3347. 

application,  3347. 

notice  of  application,  3347. 
propriety  of  receivership,  3349. 

discretion  of  judge,  3350. 

where  no  property  disclosed,  3350. 


4586  index. 

[i;i:ii:kk\ces  are  to  pages.] 
SUPPLEMENTARY  PROCEEDINGS— Cont'd. 

where  property  is  of  no  value,  3351. 

to  bring  action,  3352. 
who  may  be  appointed,  3552. 
number  of  receivers,  3352. 
order,  3353. 

filing  and  recording,  3354. 

vacating  order,  3355. 

appeal,  3356. 
security,  3356. 

extension  of  receivership,  3357. 
new  receiver,  3358. 
discharge,  3358. 
waiver  of  objections,  3359. 
collateral  attack,  3359. 
effect,  3360. 

XII.  Title  Vested  in  Receiver. 

when  property  vests  in  receiver,  3360. 

real  property,  3360. 

personal  property,  3361. 
relation  back  of  receiver's  title  to  personal  property,  3362. 
what  property  vests  in  receiver,  3364. 
personal  property,  3365. 
real  property,  3365. 

XIII.  Rights,  Duties,  and  Liabilities  of  Receiver. 
real  property,  3367. 

personal  property,  3368. 

actions  to  set  aside  fraudulent  conveyances,  3369. 

property  covered  by  chattel  mortgage,  3370. 

action  for  accounting,  3372. 

rules  relating  to  actions  in  general,  1492,  1677,  3372. 

obtaining  leave  to  sue,  3373. 

contest  of  probate  of  will,  3375. 

when  duties  are  terminated,  3375. 

obtaining  possession  of  property,  3375. 

control  over  receiver,  3376. 

payments,  3376. 
application  of  proceeds,  3377. 
compensation,  3378. 

liability  of  judgment  creditor  for  costs  in  action  by,  2947. 
condition  precedent  to  creditor's  suit,  3393. 
security  for  costs,  1S94. 


INDEX.  4587 

[references  are  to  pages.] 

SUPREME  COURT  (see,  also,  "General  Term,"  "Appellate  Division," 
"Special  Term,"  "Judges"), 

court  of  record,  101. 

considered  as  an  entirety,  152. 

historical,  152. 

civil  jurisdiction,  156,  4056. 

power  of  legislature  to  restrict  jurisdiction,  160. 

judicial  districts  and  departments,  160. 

appointment  of  term  of  court,  161,  4056. 

changing  place  of  trial  of  actions  pending  in  other  courts,  161. 

appointing  new  judge  for  trial  or  special  term,  162. 

officers  of  court,  163. 

removal  of  inferior  judges  and  officers,  163. 

place  of  holding  court,  163. 

number  of  judges  for  a  special  or  trial  term,  163. 

place  for  making  and  hearing  motions,  164. 

reports,  164. 

general  and  special  terms,  165. 

jurisdiction  and  powers  of  appellate  division,  165. 

derivation  of  names  general  and  special  terms,  165. 

jurisdiction  and  powers  of  the  special  terms,  166. 

enumerated  and  contested  motions,  167. 

review  of  judgments  or  orders  of  the  general  term,  168. 

application  for  judgment  on  referee's  report,  169. 

motion  for  new  trial  or  hearing,  169. 

state  writs,  170. 

adjournment  of  special  term  to  chambers,  170. 

decisions  as  governing  other  courts,  115,  116. 

removal  of  cause  from  city  court  of  New  York,  210. 
removal  of  action  from  county  to  supreme  court,  192-194. 

SURETIES, 

surety  company,  see  "Fidelity  Companies." 

on  appeal  bonds,  see  "Appeal,"  "Stay  of  Proceedings  on  Appeal." 

fictitious  surety  as  civil  contempt,  325. 

punishment  for  contempt,  326. 

rights  of  sureties  on  bond  or  undertaking,  683. 

discharge  on  bond  or  undertaking,  684. 

number  on  undertakings  and  bonds  in  general,  672. 

who  may  be  on  Donas  and  undertakings  in  general,  673. 

right  of  principal  to  intervene  where  surety  is  sued  on  bond,  432. 

power  to  make  payment  wbich  will  take  the  case  out  of  the  statute 

of  limitations,  530. 
agreements  between  principal  and,  687. 


1:588  INDEX. 

[REFERENCES  are  to  pages.] 
SURETIES— Cont'd. 

bail  as  sureties,  1372. 

justification  and  liability  as  security  for  costs,  1904. 

insufficiency  of  as  ground  for  vacating  order  of  arrest,  1347. 

liability  on  receiver's  bond,  1G36. 

on  undertaking  to  obtain  order  of  arrest,  1327. 

on  attachment  bond,  145G. 

exhaustion   of  remedy   at  law  against,   before   bringing  creditor's 

suit  against  co-parties  jointly  liable,  3393. 
right  to  appeal,  36G0. 

SURPLUSAGE, 

what  is,  and  effect  in  pleadings,  833. 

ground  of  demurrer,  1001. 

as  affecting  question  whether  one  cause  of  action  stated,  61. 

SURPRISE, 

ground  for  vacating  judgment,  2820. 

time  for  motion,  282G. 
ground  for  setting  aside  judicial  sale,  3228. 
ground  for  new  trial,  2709,  and  see  "New  Trial." 
new  trial  on  judge's  minutes,  2719. 

motion  for  new  trial  must  be  made  at  special  term,  2727. 
case  on  motion  for  new  trial,  2733. 
right  to  first  urge  on  appeal,  2686. 

SURREBUTTAL, 

evidence  in,  2226. 

SURROGATE, 

double  costs  in  action  against,  2992. 

SURROGATE'S  COURT, 

general  jurisdiction,  212,  4057. 
probate  proceedings  as  special  proceedings,  16. 
application  for  leave  to  issue  execution,  3079. 
enforcement  of  judgment  in,  after  death  of  debtor,  3075. 

I.  Appeals. 

decrees  and  orders  appealable,  3974. 

court  to  which  appeal  to  be  taken,  3976. 

designation  of  parties  to  appeal  and  title  of  appeal,  3976. 

who  may  appeal,  397G. 

person  not  a  party,  3977. 
time  to  appeal,  3978. 


INDEX.  4589 

[references  are  to  pages.] 

SURROGATE'S  COURT— Cont'd, 
notice  of  appeal,  3979. 

mode  of  service,  3980. 
parties,  3980. 

heirs,  legatees,  and  devisees,  3981. 

infants,  3981. 

attorneys,  3982. 

substitution  in  case  of  death,  3982. 
security  on  appeal,  39S2. 

security  to  perfect  appeal,  3982. 

security  to  stay  proceedings,  3983. 
supplying  defects  in  attempt  to  appeal,  3984. 
effect  of  appeal,  3985. 

appeal  from  probate  or  granting  letters,  3985. 

appeal  from  revoking  probate  or  letters  or  suspending  rep- 
resentative, 3986. 
appeal  papers,  39 8G. 
review,  3987. 

intermediate  orders,  3987. 

questions  of  law,  3987. 

questions  of  fact,  3988. 

discretion  of  surrogate,  3988. 

objections  not  urged  in  lower  court,  3989. 

questions  raised  by  respondents,  3989. 
judgment  or  order,  3989. 

reversal  for  erroneous  rulings  on  admission  of  evidence, 
3990. 

award  of  jury  trial  on  reversal  of  probate,  3990. 
remittitur,  3991. 
costs,  3991. 

SURVEY, 

In  actions  relating  to  real  property,  1832. 

SURVEYORS, 

fees  as  disbursement,  2987. 


TAKING  CASE  FROM  JURY, 

modes  of  taking  case  from  jury,  2279. 

difference  between  direction  of  verdict  and  nonsuit,  2280,  41G1. 
duty  of  court,  2281. 
when  case  should  be  taken  from  jury,  2281. 


1:590 


INDEX. 


[references  are  to  pages.] 

TAKING  CASE  FROM  JURY— Cont'd. 

when  case  should  not  be  taken  from  jury,  2284. 

direction  of  verdict  subject  to  the  opinion  of  the  court,  2288. 

motion,  2290. 

who  may  move,  2290. 

time,  2290. 

specifying  defects  in  proof,  2291. 

withdrawal,  2292. 
determination  of  motion,  2292,  4161. 
setting  aside  order,  2293. 
procedure  after  motion,  2293,  4162. 

motion  as  precluding  right  to  go  to  jury,  2296. 

submission    of  question    of   fact   pending   decision   of   motion, 
2296,  4162. 

motion  by  both  parties,  2297,  4162. 
effect  of  failure  to  move,  2301,  4162. 
effect  where  case  is  taken  from  jury,  2301. 
motion  for  as  condition  to  motion  for  new  trial,  2695,  2721. 
on  trial  of  framed  issues,  2163. 
failure  to  reply  as  authorizing,  992. 

TAXATION, 

of  costs,  see  "Costs," 

fees  of  county  clerk  or  sheriff,  3050. 

TAXES. 

place  of  trial  of  action  against  collector  for  wrongful  seizure,  358. 
charge  against  defaulting  bidder  at  judicial  sale,  3241. 
payment  of  on  judicial  sale  of  property,  3242. 
levy  of  warrant  on  personalty  as  divesting  lien  of  execution,  3101. 

TAXPAYER'S  ACTION, 

abatement  by  death  of  party.  2070. 

basis  for  computing  additional  allowance,  3015. 

TEAM, 

exemption  from  attachment  or  execution,  1420. 

TEMPORARY  INJUNCTION, 
nature  and  kinds,  1556,  4134. 
persons  entitled,  1558. 
discretion  of  court,  1558. 
jurisdiction,  1559. 
second  application,  1559. 
cross  injunction,  1560. 


index.  4591 

[references  are  to  pages.] 

TEMPORARY  INJUNCTION— Cont'd. 

persons  who  may  be  restrained,  1560,  4134. 
restraining  order  pending  hearing  of  application,  1561. 
as  dependent  on  nature  of  action,  1567,  4134. 
as  dependent  on  extrinsic  facts,  1567. 

act  tending  to  render  judgment  ineffectual,  1668,  4135. 

threat  or  intention  to  remove,  or  dispose  of  property,  1568. 
on  submission  of  controversy,  36. 

as  suspending  running  of  statute  of  limitations,  502-505. 
restraining  acts  pending  application  by  sureties  to  be  discharged 
from  liability  on  bond  or  undertaking,  684. 

I.  Motion. 

tie,  1569. 

who  may  grant,  190,  236,  1570, 

notice,  1572. 

proof,  1574,  4135. 

where  application  is  based  on  extrinsic  facts,  1775. 

filing,  1776. 
opposing  papers,  1577. 
time  for  decision  on,  614. 

II.  Security. 

necessity,  1577. 

on  staying  proceedings  in  action  for  money — before  trial,  1580. 

after  verdict  and  before  judgment,  1580. 

after  judgment,  1580. 
on  staying  proceedings   in  ejectment  or   dower  after  verdict, 

1581. 
filing,  1581. 
paying  into  court,  1582. 

III.  Order. 

granting  on  Sunday,  104. 
contents,  1583,  4135. 

statement  of  grounds,  1583. 

scope,  1584. 

conditions,  1584. 

date,  1584. 
service,  334,  335,  1586. 
enforcement,  1587. 
disobedience  and  punishment  therefor,  1587,  4135. 

excuses  for  disobedience,  1589. 


t592  INDEX. 

[references  are  to  pages.] 
TEMPORARY  INJUNCTION— Cont'd. 

IV.  Continuance. 
practice,  1590. 

hearing  and  decision,  1591. 
order,  1592. 

V.  Vacation  or  Modification. 

court  or  judge  before  whom  motion  should  be  made,  1593. 

time  for  motion,  1594. 

who  may  move,  1594. 

grounds  for  vacation,  1595. 

discretion  of  court,  1596. 

notice  of  motion,  159G. 

motion  papers,  1597. 

opposing  papers,  1597. 
hearing,  1597. 

effect  of  verified  answer,  1599. 
time  for  decision,  1600. 
order,  1600. 

requiring  new  undertaking,  1600. 
second  application,  1601. 
suspension  of  injunction,  1601. 
discharge  on  giving  of  undertaking,  1601. 
dissolution  by  reason  of  extrinsic  events,  1603. 

VI.  Damages. 

liability  of  plaintiff,  1604. 

accrual  of  liability,  1604,  4135. 

how  damages  ascertained,  1606,  4136. 

where  defendant  is  a  representative,  1609. 
actions  on  undertaking,  1609. 

defenses,  1610. 

parties,  1610. 
amount  of  damages,  1611. 

conclusiveness  of  finding  as  to  damages,  1612. 

counsel  fees  and  expenses,  1612,  4136. 

general  damages,  1615. 
vacation  of  attachment  as  affecting  injunction,  1527. 

TENANTS  IN  COMMON, 

purchaser  at  execution  sale  as  a  tenant  in  common,  3149. 

sale  of  interest  of  all  on  execution,  3143. 

attachment  of  property  of,  1407. 

continuance  of  action  on  death  of  tenant,  2093. 


INDEX.  4.593 

[references  are  to  pages.] 
TENDER, 

general  rules,  85. 

necessity  of  pleading  as  defense,  954. 
actions  in  which  may  be  made,  2006. 
sufficiency,  2006. 

parties  to,  2007. 

time,  2007. 

actual  production  of  money,  2008. 

keeping  good,  2008. 

amount,  2009. 

medium  of  payment,  2010. 

imposing  conditions,  2010. 
excuse  for  omission  to  make,  2011. 
successive  tenders,  2011. 
waiver,  2011. 
acceptance,  2012. 

procedure  after  acceptance,  2012. 
effect,  2012,  4153. 

title  to  deposit,  2013. 
TERMS, 

of  judicial  sale,  3222. 
TERMS  OF  COURT, 

of  court  of  appeals,  150. 

appointment  by  supreme  court,  161,  162. 

of  county  court,  194. 

of  city  court  of  New  York,  209. 

definition  and  history,  109. 

difference  between  terms  of  court  and  special  term,  110. 

relation  back  of  acts  done  during  term,  110. 

continuation  and  adjournment  of  term,  110. 

in  absence  of  judge,  111. 

on  written  direction  of  judge,  111. 
effect  of  adjournment  or  change  of  term,  112. 
term  when  order  must  be  entered,  625,  626. 
necessity  of  pleading,  832. 
right  to  preference  on  calendar  at  subsequent  term  of  court,  1687. 

TESTE, 

of  writs  and  process  in  general,  119. 
execution  against  property,  3090. 
body  execution,  3206. 

THREATS, 

excluding  officer  from  stage  door  as  contempt,  329. 
N.  Y.  Prac— 288. 


|.,i|  INDEX. 

[references  are  to  pages.] 

THREATS, 

as  election  of  remedy,  44. 

to  prefer  creditors  as  ground  of  attachment,  1402. 

TIME, 

computation  of  time,  594,  4086. 

years,  694. 

months,  694. 

days,  695,  4086. 

fractions  of  days,  696. 

night  time,  696. 

standard  time,  696. 

publication  of  legal  notices,  697. 

computation  in  publication  of  notice,  651,  652. 

computation  of  period  of  limitation  of  actions,  453. 
to  appeal,  see  "Appeal." 
to  sue,  438  et  seq. 
to  move  in  general,  597  et  seq. 
to  answer,  937. 

to  answer  after  allowance  of  amendment  to  pleading,  1042. 
to  demur,  995. 

to  move  to  intervene  as  party,  433. 
to  move  to  vacate  order,  638. 
to  move  to  bring  in  new  parties,  426. 

for  appointing  of  guardian  ad  litem  for  infant  plaintiff,  91. 
for  reply,  987. 

for  appearance  of  defendant,  804. 
for  service  of  papers  by  mail,  662,  663. 
for  service  of  papers,  662. 
for  hearing  of  motion,  607. 

for  decision  of  application  for  provisional  remedy,  614. 
when  attorney's  lien  attaches,  293. 
length  of  notice  of  motion,  584. 

motion  by  attorney  to  set  aside  settlement  of  action  between  par- 
ties, 302. 
designation  of  date  of  hearing  in  notice  of  motion,  586. 
laches  as  precluding  enforcement  of  attorney's  lien,  307. 
necessity  of  stating  time  definitely  in  pleading,  847. 
time  to  which  allegations  in  pleading  relate,  908. 
acceptance  or  rejection  of  bail,  1359. 
acceptance  of  offer  to  allow  judgment,  1996. 
application  for  preference  on  calendar,  1687. 
application  for  appointment  of  receiver,  1629. 
application  for  examination  of  party  before  trial,  1790. 


index.  4595 

[references  are  to  pages.] 
TIME— Cont'd. 

application  to  exonerate  bail,  1364. 

application  for  examination  of  witness  outside  of  state,  1735. 

application  for  order  of  arrest,  1315. 

application  to  perpetuate  testimony  of  witness,  1723. 

attachment,  1385. 

application  for  discharge  of  property  from  attachment,  1504. 

delivery  of  papers  to  plaintiff's  attorney  where  bail  given,  1358. 

demand  for  change  of  place  of  trial,  1941. 

duration  of  attachment  lien,  1482. 

exceptions,  2369. 

exceptions  to  judge's  charge,  2344. 

exceptions  to  decision  or  report,  2389. 

execution  of  bond  of  guardian  ad  litem,  2047. 

filing  of  note  of  issue,  1668. 

motion  to  allow  party  to  discontinue  action,  2113. 

motion  to  frame  issues  for  trial  by  jury,  2156,  2162. 

motion  to   dissolve  temporary  injunction,   1594. 

motion  to  vacate  attachment,  1517. 

motion  for  substitution  of  party,  2076. 

motion  to  consolidate  actions,  1699. 

motion  for  interpleader,  1866. 

motion  to  postpone  trial,   2028. 

motion  to  revive  on  death  of  sole  party,  2082. 

motion  to  dismiss  complaint  for  want  of  prosecution,  2130. 

motion  to  vacate  order  of  arrest,  1341. 

motion  to  change  place  of  trial,  1945. 

motion  for  temporary  injunction,  1569. 

decision  of  motion  to  dissolve  temporary  injunction,  1600. 

offer  to  allow  judgment  before  trial,  1992. 

petition  for  discovery  and  inspection,  1844. 

service  of  subpoena  duces  tecum,  1969. 

service  of  notice  of  trial,  1665. 

service  and  settlement  of  interrogatories,  1740. 

tender  of  debt  or  damages,  2007. 

twenty  days  as  limit  for  stay  of  proceedings,  1920. 

when  order  changing  place  of  trial  takes  effect,  1963. 

I.  Matters  relating  to  Summons. 

service,  733. 

publication  of.  776,  779. 

service  without  state,  776. 

substituted  service,  756. 

duration  of  immunity  from  service,  732. 


4596  index. 

[befekences  are  to  pages.] 
TIME— Cont'd. 

II.  Matters  Relating  to  Pleadings  in  General. 

to  object  to  generally,  1094. 

to  movo  to  amend,  1037. 

to  move  for  leave  to  file  supplemental  pleadings,  1056. 

to  move  to  strike  allegations,  1068. 

to  move  to  strike  as  sham,  1078. 

to  move  for  judgment  on,  1073. 

for  return  of,  915. 

to  serve,  881. 

amended  pleadings,  1022. 

III.  Matters  Relating  to  Complaint. 

to  move  to  make  more  definite,  1064,  1065. 
to  move  for  bill  of  particulars,  871. 

more  specific  bill,  879. 
to  move  to  vacate  order  for  particulars,  877. 
to  move  to  dismiss  for  failure  to  state  action,  1082. 

IV.  Matters  Arising  at  Trial. 

motion  to  strike  out  evidence,  2274. 
motion  to  take  case  from  jury,  2290. 
closing  argument  to  jury,  2306. 
requests  to  charge  jury,  2334. 
charge  to  jury,  2338. 
submission  of  requests  to  find,  2610. 
report  of  referee,  2625. 

confirmation,  2640. 

motion  to  vacate,  2630. 
decision,  2383. 

filing,  2714. 

V.  Matters  Relating  to  Case. 

making  of,  2656. 

proposing  amendments  to,  2659. 

notice  of  settlement  of,  2670. 

settlement  of,  2670. 

signature,  2675. 

filing,  2675. 

resettlement,  2681. 

VI.  Matters  Relating  to  New  Trial. 

motion  for  new  trial  on  judge's  minutes,  2718. 
motion  at  special  term  for  new  trial,  2729. 
motion  for  new  trial  of  feigned  issues,  2738. 
exceptions  to  be  heard  in  first  instance  by  appellate  division, 
2725. 


index.  4597 

[references  are  to  pages.] 
TIME— Cont'd. 

VII.  Matters  Relating  to  Judgment. 
action  on,  2841. 

default  judgment,  2848. 

docketing  judgment,  2795. 

duration  of  lien  of,  2800. 

entry  on  decision  or  report,  2770. 

entry  by  confession,  2887. 

filing  judgment  roll,  2786. 

judgment  in  creditor's  suit,  3430. 

judicial  sale,  3221,  motion  to  set  aside,  3231. 

lien  attaches,  2807. 

motion  to  amend,  2813. 

motion  to  vacate,  2823. 

motion  to  vacate  against  deceased  person,  2823. 

motion  to  open  default,  2872. 

motion  to  vacate  judgment  by  confession,  2891. 

notice  of  settlement  of  form,  2773. 

objection  to  relief  more  than  demanded,  2764. 

notice  of  execution  of  writ  of  inquiry  or  reference  to  assess 

damages,  2862. 
statement  in  docket  book  of  time  when  roll  filed  and  judgment 

docketed,  2792. 

VIII.  Matters  Relating  to  Execution. 
issuance,  3067-3081. 

sale,  3128,  3142. 

levy,  3115. 

motion  to  quash,  3189. 

return,  3183. 

to  support  creditor's  suit,  3298. 

creation  of  execution  lien  against  personal  property,  3101. 

deed  after  execution  sale,  3155. 

redemption  from  sale,  3167. 

IX.  Matters  Relating  to  Supplementary  Proceedings. 
service  of  order  to  appear,  3295. 

motion  to  set  aside  order  to  appear,  3302. 

order  permitting  third  person  to  pay  sheriff,  3326. 

order  requiring  payment  or  delivery,  3329. 

appointment  of  receiver,  3346. 

title  vests  in  receiver,  3360. 

X.  Matters  Relating  to  Costs. 

additional  allowance,  3005. 

motion  for  additional  allowance,  3022. 


459S  INDEX. 

[references  are  to  pages.] 

TIME— Cont'd. 

motion  for  retaxation  of,  3036. 

notice  of  taxation  of,  3026. 

motion  for  security  for,  1896. 

motion  for  leave  to  sue  as  poor  person,  1876. 

XI.  Extension  of  Time. 
in  general,  692,  4086. 
to  move,  598. 
to  bring  action,  453. 
to  serve  pleading,  883. 
to  answer,  938. 
to  serve  case,  2658. 

to  continue  action  on  plaintiff's  death,  2098. 
to  appeal,  3685. 
relief  after  expiration  of  time,  693. 

TITLE, 

definition,  2908. 

by  adverse  possession,  see  "Adverse  Possession." 

cloud  on,  see  "Quieting  Title." 

of  purchaser  at  judicial  sale,  3244. 

relieving  purchaser  at  judicial  sale  because  of  imperfect  title,  3233. 

of  receiver  in  supplementary  proceedings,  3360. 

return  as  essential  to  title  of  purchaser  at  execution  sale,  3186. 

purchaser  at  execution  sale  of  personalty,  3132. 

purchaser  at  execution  sale  of  realty,  3147. 

property  levied  on  under  execution,  3120. 

relief  to  execution  purchaser  on  failure  of,  3151. 

to  amount  of  tender  paid  into  court,  2013. 

to  deposit  as  security  for  costs,  1905. 

to  money  paid  into  court,  2019. 

of  receiver  pendente  lite,  1638. 

discovery  and  inspection  to  ascertain,  1839. 

I.  Of  Papers. 

of  complaint,  918. 

of  affidavit,  536-538. 

of  submission  of  controversy,  34. 

of  motion  papers,  573. 

construction  where  title  and  body  of  pleading  do  not  agree,  908. 

as   affecting  question   whether   one  or   more   causes   of  action 

stated,  62. 
necessity  of  stating  title  to  property  definitely  in  pleadings,  848. 
allegations  in  body  of  pleading  as  controlling  title,  923. 


INDEX.  4599 

[references  are  to  pages.] 

TITLE— Cont'd. 

of  motion  papers  to  revise  on  death  of  sole  party,  2084. 

of  motion  in  two  causes,  3187. 

of  action  as  recited  in  case,  2663. 

notice  of  judicial  sale,  3218. 

order  in  supplementary  proceedings,  3289. 

affidavits  in  supplementary  proceedings,  3280. 

TOOLS, 

working  tools  as  exempt,  1420. 

TORTS   (see,  also,  "Negligence,"  "Injuries  to  Property,"  "Personal  In- 
juries," etc.), 
particular  torts,  see  titles  such  as  "Trespass,"  "Negligence,"  etc. 
whether  action  founded  on  contract  or  tort,  27. 
splitting  cause  of  action  founded  on  tort,  55. 
jurisdiction  where  tort  committed  without  state,  131,  132. 
jurisdiction  of  torts  committed  at  sea,  139. 
bill  of  particulars  in  actions  ex  delicto,  866. 
joinder  of  persons  as  plaintiffs,  405,  406. 
joinder  of  defendants  in  actions  ex  delicto,  412,  413. 
liability  as  joint  or  several,  397. 

admissibility  of  evidence  as  to  damages  under  general  denial,  947. 
judgment  against  part  of  defendants,  2760. 
recovery  ex  contracto  in  action  ex  delicto,  2765. 
costs,  in  actions  for,  as  matter  of  right,  2914. 
judgment  by  confession  for,  2880. 

TOWNS, 

costs  in  action  against  supervisor,  2938. 

TRADE-MARKS, 

jurisdiction  of  actions  as  between  state  and  federal  courts,  142. 

levy  on,  3108. 

value  as  basis  to  compute  additional  allowance  in  infringement  suit, 
3014. 
TRANSACTION, 

definition,  66. 

as  synonymous  with  subject  of  action,  68. 

when  causes  of  action  arise  out  of  same  transaction,  975. 

TRANSCRIPTS, 

of  docket  of  judgment,  2793. 
of  judgment  of  justice  of  the  peace,  2794. 

of  canceled  docket  where  judgment  reversed  or  modified,  2806. 
of  order  suspending  or  restoring,  lien  of  judgment  pending,  or  on 
decision  of,  appeal,  2804,  2805. 


4<>00  INDEX. 

[REFERENCES  are  to  pages.] 
TRESPASS, 

successive  actions,  55. 

jurisdiction  where  lands  are  outside  of  state,  131. 

place  of  trial,  352. 

nature  of  common  law  action,  24. 

abatement  of  action  by  death  of  party,  2069. 

order  of  arrest,  1281. 

costs  as  of  course,  2909,  2911. 

basis  for  computing  extra  allowance,  3018. 

TRIAL  (see,  also,  "Issues,"  "Place  of  Trial,"  "Calendar,"  "Notice  of 
Trial,"  "Removal  of  Cause"  "Interpreter,"  "Jury,"  "Inquests," 
"Evidence,"  "Examination  of  Witnesses,"  "Witnesses"), 

instructions,  see  "Charge  to  Jury." 

continuance,  see  "Postponement." 

verdict,  see  "Verdict." 

decision,  see  "Decision." 

by  referee,  see  "Reference." 

requests  to  find,  see  "Requests  to  Find." 

non-suit  or  direction  of  verdict,  see  "Taking  Case  from  Jury." 

what  constitutes,  2967. 

discovery  and  inspection  to  enable  p'arty  to  prepare  for  trial,  1837. 

inability  to  obtain  impartial  trial  as  ground  for  changing  place  of 

trial,  1938. 
mode  of  trying  issues  of  law  and  fact,  2138. 
obtaining  a  jury,  2177. 
preliminary  motions,  2201. 
right  to  open,  2203. 
opening  address  to  jury,  2208. 

motion  to  dismiss  complaint  after  opening  of  counsel,  2210. 
evidence,  2214. 
offers  of  proof,  2228. 
withdrawal  of  juror,  2277. 
taking  case  from  jury,  2278. 
summing  up  by  counsel,  2302. 
improper  remarks  of  judge,  2302. 
trial  by  court  without  a  jury,  2372. 

trial  of  issue  of  law,  2376. 
order  of  proof,  2224. 
special  or  trial  term,  2167. 

papers  to  be  furnished  on  trial,  and  by  whom,  2167. 
amendments  by  leave  of  court  before  the  trial,  1028. 
construction  of  pleadings  on  trial,  906. 
misconduct  of  spectators  as  ground  for  new  trial,  2700. 


INDEX.  4C01 

[references  are  to  pages.] 

TRIAL— Cont'd. 

exhibition  of  foot  to  jury  as  ground  for  new  trial,  2688. 
amount  of  costs  for  trial  of  an  issue  of  fact,  2967. 
amount  of  costs  for  proceedings  after  notice  of  trial  and  before 
trial,  2964. 

TROVER, 

nature  of  common  law  action,  25. 

nature  of  actions  based  on  contract  with  charge  of  conversion,  29. 

election  between  remedies,  43. 

successive  actions,  55. 

cause  of  action  for  money  had  and  received  as  inconsistent,  72. 

necessity  of  demand  before  suing,  82. 

right  to  require  bill  of  particulars,  868. 

when  cause  of  action  accrues,  499. 

order  of  arrest.  1280,  1282. 

right  to  attach  property  in  action  for  trover,  1392. 

right  of  sheriff  to  bring,  1492. 

action  by  execution  purchaser,  3134. 

action  by  sheriff  before  levy,  3101. 

judgment  by  default,  procedure,  2852. 

costs  as  matter  of  right,  2913. 

basis  of  computing  additional  allowance  of  costs,  3009. 

body  execution,  3199. 

TRUSTEES, 

power  to  submit  controversy,  34. 

right  of  beneficiary  of  trust  to  sue  alone,  391. 

when  statute  of  limitations  begins  to  run  against  trustee,  491. 

right  of  trustee  to  set  up  statute  of  limitations,  454. 

power  of  trustee  to  sue  alone,  387-391. 

counterclaims  in  actions  by  trustees,  982. 

counterclaims  in  actions  against  trustees,  983. 

proceedings  for  settlement  of  accounts  as  special  proceedings,  16. 

power  to  join  causes  of  action  on  claims  against  trustee,  65. 

joinder  of  causes  of  action  against  in  representative  capacity  and 

personalty,  75,  76. 
jurisdiction  to  enforce  foreign  trust,  132. 
time  within  which  to  bring  action  against  to  recover  chattels  or 

for  damages  for  taking  or  detention  thereof,  481. 
attachment  of  property  in  hands  of  trustee,  1413. 
discovery  and  inspection  in  actions  between  trustee  and  cestui  que 

trust,  1830,  1831. 
security  for  costs,  1893. 
effect  of  death  or  removal  pending  suit  by  or  against,  2079. 


4-602  INDEX. 

[references  are  to  pages.] 
TRUSTEES— Cont'd. 

exemption  of  trustee  from  liability  to  arrest,  1307. 
power  to  confess  judgment,  2880. 
power  to  purchase  at  judicial  sale,  3225. 
supplementary  proceedings  against,  3259. 
personal  liability  of  trustee  for  costs,  2949. 
power  to  appeal,  3655. 

TRUSTS  (see,  also,  "Resulting  Trusts"), 
what  are  express  trusts,  389. 
jurisdiction  of  supreme  court,  158. 

joinder  of  parties  in  actions  involving  a  trust,  401,  402. 
when  statute  of  limitation  begins  to  run  against,  488,  489. 
statute  of  limitations,  472. 

statute  of  limitations  as  applicable  to  express  trust,  442,  443. 
attachment  in  action  to  enforce,  1389. 

application  of  surplus  income  by  means  of  creditor's  suit,  3401. 
avoiding  transfers  by  grantor  where  trust  estate  is  insolvent,  3432. 
real  property  as  subject  to  execution  sale,  3138. 
income  of  as  leviable,  3108. 
property  as  subject  to  supplementary  proceedings,  3262. 

TJ. 

UNANIMOUS  AFFIRMANCE  (see  "Court  of  Appeals"). 

UNCERTAINTY   (see  "Definiteness"). 

UNDERTAKING-  (see,  also,  "Sureties"), 

on  appeal,  see  "Appeal,"  "Stay  of  Proceedings  Pending  Appeal." 

definition  and  nature  of  instruments,  671. 

necessity,  671. 

who  must  execute,  672. 

number  of  sureties,  672. 
who  may  be  sureties,  673. 
contents  and  validity,  674. 

amount,  676. 

affidavit  of  obligor  or  sureties,  676. 

signature  and  seal,  676. 
sufficiency,  678. 
construction,  678. 

acknowledgment  and  certification,  679. 
justification,  679. 

justification  of  several  sureties  in  lesser  sums,  680. 

approval,  681. 


INDEX.  460S 

[references  are  to  pages.] 

UNDERTAKING — Cont'd, 
filing,  682. 

rights  of  sureties,  683. 
release  from  liability,  683. 
discharge  on  order,  684,  4085. 
amendments,  686,  4085. 

agreements  between  principal  and  surety,  687. 
actions,  687. 

on  bonds  to  people  or  public  officers,  688,  4085. 

defenses,  689. 
power  of  attorney  to  act  as  surety,  247. 

I.  Particular  Undertakings. 

on  obtaining  attachment,  1454. 

on  application  for  discharge  of  property  from  attachment,  1504.. 
on  application  by  partners  to  discharge  attachment,  1509. 
on  obtaining  order  of  arrest,  1326. 
on  granting  temporary  injunction,  1577. 
on  discharge  of  temporary  injunction,  1601. 
bail,  1355. 

bond  for  jail  liberties,  1376. 
receiver's  bond,  1634. 
of  guardian  ad  litem,  2045. 
security  for  costs,  1902. 

for  restitution,  where  judgment  rendered  by  default,  2859. 
requiring  as  condition  of  opening  default  judgment,  2876. 
to  secure  executor  or  administrator,  on  leave  given  to  issue  ex- 
ecution against,  3084. 
indemnity  to  sheriff  where  person  claims  goods  levied  on,  3124. 
to  release  firm  property  levied  on  under  execution,  3122. 
after  arrest  in  supplementary  proceedings,  3311. 

UNITED  STATES, 

jurisdiction  of  actions  by  or  against,  143. 
jurisdiction  of  actions  by  or  against  officers,  144. 
jurisdiction  of  courts  over  federal  property,  133,  134. 
bringing  in  by  interpleader,  1863. 

UNKNOWN  DEFENDANTS, 

designation  in  summons  and  complaint,  393,  394,  717,  920. 

USE  AND  OCCUPATION, 

place  of  trial  of  action,  360. 


4004  INDEX. 

[befebences  are  to  pages.] 

USURY, 

necessity  of  pleading  as  defense,  954. 

power  to  set  up  by  amendment  before  trial,  1028. 

ground  for  vacating  judgment  by  confession,  2890. 

V. 

VARIANCE, 

between  summons  and  complaint  as  cured,  703. 
amendment  after  trial  to  correct,  1036. 
amendments  on  trial  to  confirm  pleadings  to  proofs,  1032. 
in  docketing  of  judgment,  effect  of,  2792. 

VENDOR  AND  PURCHASER  (see  "Sales"). 

VENDOR'S  LIEN, 

as  superior  to  judgment  lien,  2807. 

when  action  to  enforce  barred  by  limitations,  452. 

VENUE   (see,  also,  "Place  of  Trial,"  "Change  of  Place  of  Trial"), 
of  affidavit,  538. 

VERDICT, 

kinds  of  verdicts,  2354. 

general  verdict,  2354. 

special  verdict,  2354. 

special  findings,  2355. 

sealed  verdict,  2356. 
receiving  the  verdict,  2357. 

polling  the  jurors,  2358. 

sending  jury  back,  2359. 
entry,  2359. 
form  and  contents,  2359. 

assessment  of  damages,  2361. 

severance  as  to  parties,  2362. 
amendment  or  correction,  2362. 

by  jury,  2362. 

by  court,  2364. 
separate  verdicts  where  actions  are  consolidated,  1700. 
leave  to  discontinue  after,  2110. 
effect  of  death  of  party  after  verdict,  2100. 
mode  in  which  jury  decide,  2352. 
charging  as  to  result  of,  2333. 
on  framed  issues,  2158,  2163. 
new  trial  because  contrary  to  law,  2698. 


INDEX.  4605 

[references  are  to  pages.] 

VERDICT— Cont'd. 

against  the  weight  of  evidence  as  ground  for  new  trial,  2692. 

misconduct  of  jury  before  rendition,  as  ground  for  new  trial,  2701. 

impeachment  by  affidavits  or  admission  of  jurors,  2734. 

judgment  on  general  verdict,  2768. 

judgment  on  special  verdict,  2769. 

judgment  on  verdict  subject  to  opinion  of  appellate  division,  2780. 

amendment  of  judgment  where  it  fails  to  conform  to,  2809. 

including  in  case,  2662. 

informality  in,  as  ground  for  quashing  execution,  3188. 

amount  of  costs  on  application  for  judgment  on  special  verdict,  2971. 

setting  aside,  effect  on  extra  allowance,  2999. 

objections  to  pleadings  cured  by  verdict,  1093. 

requiring  consent  to  reduction  on  amendment  of  pleading,  1045. 

amendment  of  pleadings  after  trial  to  render  verdict  certain,  1036. 

VERIFICATION, 

right  to  verify  pleading,  886. 
necessity,  886,  4101. 
who  may  verify,  890. 

party,  890. 

officer  of  domestic  corporation,  891,  4101. 

agent  or  attorney,  892. 
sufficiency  of,  894. 

by  party,  895. 

by  officer  of  domestic  corporation,  896. 

by  attorney,  agent,  or  person  with  knowledge,  896,  4101. 
want  of,  and  defects  in,  900. 

of  complaint,  900. 

of  answer,  901. 

waiver  of  defects,  901,  4101. 
verified  complaint  as  proof  to  obtain  service  by  publication,  763. 
construction  of  allegations  in  verified  pleadings,  907. 
as  aid  to  construction  of  pleadings,  907. 

addition  of  verification  of  pleading  as  an  amendment,  1024. 
defects  in,  as  ground  of  demurrer,  1002. 
waiver  of  want  of  by  failure  to  return  pleadings,  1093. 
of  signature  of  attorney  to  admission  of  service  of  papers,  666. 
of  bill  of  particulars,  878. 
of  statement  confessing  judgment,  2885. 
of  petition  for  leave  to  sue  as  a  poor  person,  1875. 
of  petition  for  discovery  and  inspection,  1846. 
of  petition  for  guardian  ad  litem,  2045. 
of  inquest  on  failure  to  verify  answer,  2173. 


4606  INDEX. 

[references  are  to  pages.] 

VESSELS, 

attachment  under  junior  warrant  of  attachment,  1532. 
proceedings  for  trial  of  a  third  person's  claim  to,  1488. 
discharge  of  vessel  attached,  1510. 

VIEW, 

by  jury,  2220. 

by  trial  judge,  2374. 

misconduct  of  jury  as  ground  for  new  trial,  2701. 

VOID  (see  "Irregularity"). 

w. 

WAGES, 

levy  on,  3108. 

subject  to  supplementary  proceedings,  3263. 

exemption  from  attachment  or  execution,  1422. 

WAIVER, 

of  right  to  appeal,  see  "Appeal." 

of  irregularities  in  general,  702. 

of  objections  to  complaint,  1090. 

of  objections  to  answer,  1092. 

of  objections  to  ruling  on  demurrer,  1092. 

of  objections  to  want  of  reply,  1092. 

of  objections  to  order,  628. 

of  right  to  require  pleading  to  be  made  more  definite  and  certain, 
841. 

of  defects  in  verification  of  pleadings,  901. 

by  failure  to  return  pleading,  915. 

of  objections  to  summons,  794. 

of  objections  to  service  of  summons,  799. 

of  notice  of  appearance,  813. 

of  objections  to  service  of  papers,  668. 

of  objections,  by  special  appearance,  812. 

of  right  to  exemption  from  service  of  summons,  732. 

of  right  to  insist  on  admissions  in  pleadings,  914. 

of  objection  that  name  of  county  is  not  contained  in  title  of  com- 
plaint, 919. 

by  answering  pleading,  1093. 

acceptance  of  costs  as  waiving  objections  to  order  allowing  amend- 
ment of  pleadings,  1043. 

on  notice  to  terminate  reference,  2626. 

of  oath  of  referee,  2588. 


INDEX.  4607 

[references  are  to  pages.] 

WAIVER— Cont'd. 

of  objections  to  reference,  2582. 
of  lien  of  judgment,  2799. 
of  motion  to  vacate  judgment,  2829. 
of  right  to  serve  case,  2659. 
of  certification  of  case,  2676. 

laches  in  moving  at  special  term  for  new  trial,  2730. 
of  right  to  costs,  2903,  2905. 
of  objections  to  costs,  2905. 
of  costs  for  arguing  a  demurrer,  2935. 

service  of  order  to  appear  in  supplementary  proceedings,  3295. 
appearance  before  referee  for  examination  in  supplementary  pro- 
ceedings, 3319. 
objections  to  appointment  of  receiver  in  supplementary  proceedings, 

3359. 
notice  of  application  to  appoint  receiver  in  supplementary  proceed- 
ings, 3349. 
objections  to  redemption  from  execution  sale,  3179. 
of  defects  in  service  of  papers  on  making  arrest,  1337. 

of  defects  in  affidavit  to  obtain  order  of  arrest,  1322. 

of  exceptions,  2370. 

of  exemption  from  arrest,  1313. 

of  exemption  of  property,  1428. 

of  irregularities  in  notice  of  trial  or  in  service  thereof,  1666. 

of  objections  to  affidavit  for  attachment,  1454. 

of  objections  to  evidence,  2270. 

of  objections  to  change  of  place  of  trial,  1963. 

of  objections  to  demand  for,  or  consent  to,  change  of  place  of  trial, 
1943. 

of  privilege  to  refuse  to  answer  incriminating  questions,  2234. 

of  right  to  discontinue  action,  2110. 

of  right  to  trial  by  jury,  2142. 

of  right  to  trial  without  a  jury,  2153. 

of  right  to  have  issues  framed  for  trial  by  jury,  2157. 

of  right  to  move  to  dismiss  for  plaintiff's  failure  to  proceed,  2129. 

of  right  to  change  of  place  of  trial,  1929. 

of  stay  for  failure  to  pay  costs  as  required  by  order,  1915. 

of  tender,  2011. 

by  failure  to  challenge  juror,  2198,  2201. 

motion  for  nonsuit,  2295. 

WAR  (see,  also,  "Militia"), 

existence  of  war  as  affecting  statute  of  limitations,  512. 
ground  for  changing  place  for  holding  court,  113. 


4608  INDEX. 

[references  are  to  pages.] 
WAREHOUSEMAN, 

right  to  interplead  person  claiming  interest  in  goods,  1863. 
WARRANT, 

of  attachment,  1385,  1460. 

of  arrest  in  supplementary  proceedings,  3307,  3309. 

WARRANTY, 

cause  of  action  for  breach  as  inconsistent  with  cause  for  fraud,  72. 
cause   of  action   for  false   representation   as   arising   out   of   same 
transaction,  69. 

WASTE, 

place  of  trial  of  action  for,  350. 

jurisdiction  where  lands  are  outside  of  state,  131. 

right  to  trial  by  jury,  2140. 

view  by  jury,  2220. 

possession  by  debtor  of  property  sold  on  execution,  3153. 

order  to  prevent,  3153. 

punishment,  3154. 

WATERS  AND  WATER  COURSES, 

place  of  trial  of  action  to  restrain  diversion  of  waters,  354. 
WEEK, 

what  is,  3217. 

WILLS, 

time  within  which  to  bring  action  to  establish,  477. 

when  cause  of  action  to  establish  accrues,  499. 

jurisdiction  of  supreme  court  to  probate,  158. 

preference  on  calendar  where  action  is  to  construe,  1676. 

additional  allowance  in  action  to  construe,  2995. 

basis  for  computing  extra  allowance  in  actions  relating  to,  3017. 

payment  of  costs  from  fund,  in  action  to  construe,  2931. 

WITHDRAWAL, 

of  pleadings,  885,  914,  4101. 

of  service  of  papers,  668. 

of  appearance,  817. 

of  admission  of  service,  667. 

revival  of  service  of  summons  after  withdrawal,  736. 

of  judge's  charge,  2341. 

of  juror  where  speech  to  jury  contains  improper  remarks,  2209. 

of  motion  to  take  case  from  jury,  2292. 

of  offer  to  allow  judgment,  1995. 

application  for  default  judgment,  2860. 


INDEX.  400$ 

[references  are  to  pages.] 

WITNESSES    (see,  also,  "Subpoena"), 

examination,  see  "Examination  of  Witnesses." 

experts,  see  "Experts." 

refusal  to  attend  or  testify  as  contempt,  320,  323. 

preventing  from  attending  or  testifying  as  contempt,  328. 

excuse  for  failure  to  attend  trial,  340. 

requiring  production  of  for  examination  as  condition  of  allowing 

amendment  of  pleading,  1045. 
power  of  county  judge  to  discharge  from  arrest,  190. 
procuring  attendance  of  witness   whose  affidavit  or  deposition   is 

compelled  for  purpose  of  motion,  581. 
necessity  person  making  affidavit  be  competent  as  a  witness,  547. 
examination  before  judge  on  hearing  of  motion,  610. 
power  to  sit  as  judge,  232. 

privilege  from  testifying  as  excusing  verification  of  pleading,  888. 
when  exempt  from  service  of  summons,  730. 
implied  power  of  attorney  to  employ  expert,  271. 
place  of  trial  of  action  for  disobeying  subpoena,  355. 
payment  of  witness  fees,  1982. 

habeas  corpus  to  bring  up  a  prisoner  to  testify,  1985. 
absence  of  as  ground  for  continuance,  2026. 
change  of  place  of  trial  for  convenience  of,  1931. 
qualification  as  juror,  2197. 

duty  on  being  served  with  subposna  duces  tecum,  1969. 
charging  as  to  effect  of  false  testimony,  2329. 
charge  where  witness  has  been  impeached,  2329. 
effect  of  presence  in  court  on  right  to  read  his  deposition,  1767. 
charging  as  to  failure  of  party  to  produce,  2331. 
tender  of  fees  on  service  of  order  for  examination  before  trial, 

1807. 
incrimination  of  as  ground  for  refusing  examination  before  trial, 

1787. 
charge  of  judge  as  to  credibility  of,  2320,  2327. 
exemption  from  arrest,  1309. 
limiting  number  of  impeaching  witnesses,  2235. 
giving  undue  prominence  to,  in  charge  to  jury,  2322. 
discharge  from  arrest,  1350. 

examination  before  trial  as  precluding  examination  at  trial,  1789. 
compelling  attendance  before  referee,  2591,  2605. 
in  supplementary  proceedings,  3320  et  seq. 
mistake  of,  as  ground  for  new  trial,  2713. 
newly-discovered  contradictory  evidence  as  ground  for  new  trial, 

2708. 
perjury  as  ground  for  new  trial,  2708. 

N.  Y.  Prac—  289. 


1610  INDEX. 

[references  are  to  pages.] 

WITNESSES— Cont'd. 

surprise  as  to,  as  ground  for  new  trial,  2712. 

number  on  each  side  as  affecting  weight  of  evidence,  2G93. 

new  trial  because  verdict  supported  by  smaller  number  of  wit- 
nesses, 2693,  2694. 

fees  as  disbursements,  2978. 

affidavit  of  amount  spent  for  fees,  3028. 

refusal  to  testify,  or  perjury,  in  supplementary  proceedings,  as  a 
contempt,  3337. 

WORK  AND  LABOR, 

splitting  cause  of  action  for  services,  54  et  seq. 

pendency  of  action  to  foreclose  lien  as  precluding  action  for  serv- 
ices and  vice  versa,  49. 
causes  of  action  for  work  performed  and  for  breach  of  agreement 

for  work  as  arising  out  of  same  transaction,  68. 
right  to  appeal,  3659. 

WRIT, 

general  rules,  119. 

want  of  writ  as  cured  by  verdict,  report  or  decision,  703. 

teste,  return,  and  filing,  119. 

subscription,  indorsement,  and  seals,  119. 

habeas  corpus  to  bring  up  prisoner  to  testify,  1985. 

WRITINGS, 

incorporation  in  case,  2664. 

newly-discovered  documents  as  ground  for  new  trial,  2703. 

fees  for  certified  copy  as  disbursements,  2988. 
WRIT  OF  ASSISTANCE, 

order  as  appealable,  3636. 

WRIT  OF  INQUIRY, 

when  necessary,  2858,  2861. 

when  proper,  2861. 

where  executed,  2862. 

notice  of  execution,  2862. 
WRITTEN   INSTRUMENTS    (see,    also,   "Alteration   of    Instruments," 
"Cancellation   of   Written   Instruments,"    "Reformation  of  Writ- 
ten Instruments,"  "Sealed  Instruments"), 

what  are  instruments  for  payment  of  money  only,  1409,  1466. 

sufficiency  of  pleading  cause  founded  on  instruments  for  payment 
of  money  only,  854. 

Y. 

YEAR, 

definition,  694. 


INDEX  TO  FORMS. 


[references  are  to  pages.] 


A. 

ACCEPTANCE, 

of  offer  to  liquidate  damages,  2004. 

ACCORD  AND  SATISFACTION, 
pleading,  965. 

ACCOUNT, 

order  appointing  referee  to  state  an  account,  2579. 

report  of  referee  to  take  and  state,  2624. 
ADDITIONAL  ALLOWANCE, 

order  for,  3025. 

ADMISSION, 

of  servce  of  papers,  668. 
of  service  of  summons,  790. 
of  genuineness  of  paper,  1975. 

AFFIDAVIT, 

Affidavits  relating  to  appeals,  see  "Appeal." 

to  obtain  extension  of  time  to  plead,  692,  940. 

to  obtain  order  for  publication  of  summons,  769. 

to  obtain  substituted  service  of  summons,  753. 

of  service  of  summons,  788,  791,  792. 

of  filing  of  papers  where  summons  is  published,  776. 

of  service  of  papers  by  mail,  668. 

to  verify  signature  of  service  of  summons,  790. 

for  bill  of  particulars,  875. 

on  motion  to  compel  making  of  affidavit  or  deposition  for  purpose 

of  motion,  580. 
on  motion  to  set  aside  service  of  summons  on  corporate  officer,  800. 
of  proposed  guardian  ad  litem  for  plaintiff,  91. 

accompanying  statement  of  facts  where  controversy  is  submitted  on 
admitted  facts,  36. 


4L;io  INDEX  TO  FORMS. 

[REFERENCES   ARE   TO   PAGES.] 

AFFIDAVIT— Cont'd. 

jurat  of  affidavit  taken  without  the  state,  556. 

certificate  of  authority  to  take  affidavit  taken  without  the  state,  559. 

for  arrest  in  civil  action,  1323. 

for  attachment,  1451. 

for  open  commission  to  take  deposition  outside  state,  1752. 

to  obtain  sale  of  attached  property,  1479. 

to  obtain  order  to  perpetuate  testimony,  1725. 

for  commission  to  take  deposition  outside  state,  1737. 

to  obtain  examination  of  party  before  trial,  1792,  1795. 

to  obtain  habeas  corpus  to  bring  up  prisoner  to  testify,  1987. 

of  authority  to  make  offer  to  allow  judgment,  1994. 

motion  to  vacate  attachment,  1526. 

motion  for  interpleader,  1868. 

motion  for  security  for  costs,  1900. 

motion  for  physical  examination  of  party,  1820. 

motion  for  stay  of  proceedings,  1921. 

motion  to  change  place  of  trial,  1953,  1958. 

motion  to  postpone  trial,  2029. 

motion  for  preference  on  calendar,  1685. 

motion  to  consolidate  actions,  1698. 

to  procure  reference,  2575. 

where  difficult  questions  of  law  are  involved,  2576. 
of  no  answer,  2854. 
motion  for  leave  to  issue  execution. 

after  five  years,  3072. 

after  death  of  judgment  debtor,  3078. 

against  wages,  income  of  trust,  etc.,  3111. 
claim  of  third  person  to  property  levied  on,  3124. 
as  to  disbursements,  3030. 
of  amount  due  on  judgment,  3178. 
to   procure   order  for  examination   in   supplementary  proceedings, 

3284,  3285,  3287,  3288. 
to  procure  order  of  arrest  in  supplementary  proceedings,  3309. 
to  obtain  order  permitting  third  person  to  pay  to  sheriff,  in  sup- 
plementary proceedings,  3326. 

AFFIDAVIT  OF  MERITS, 
form,  563. 

AGENTS, 

verification  of  pleading  by  agent,  899. 

AMENDMENTS, 

form  of  order  granting  leave  to  amend  pleading,  1046. 


INDEX  TO  FORMS.  4613 

[REFERENCES    ABE    TO   PAGES.] 

ANOTHER  ACTION  PENDING, 

affidavit  for  stay  because  of,  1921. 

ANSWER, 

forms  of  defenses  of  new  matter,  965-967. 

affidavit  and  order  on  obtaining  extension  of  time  to  answer,  692, 

940,  941. 
stipulations  extending  time  to  answer,  938. 

APPEAL, 

affidavit  and  order  on  substitution  of  party,  3675. 

affidavit  and  orders  where  party  not  substituted,  3677,  3678. 

affidavit  and  order  where  order  made  by  judge  out  of  court  is  not 

entered,  3684,  3685. 
notice  of  entry  of  judgment  or  order,  3693. 
notice  of  application  for  leave  to  appeal,  3702. 
order  granting  leave  to  appeal,  3706. 
notices  of  appeal,  3711,  3713. 

undertakings  to  perfect  appeal,  3729,  3730,  3749,  3752. 
waiver  of  security  on  appeal,  3744. 
affidavit  to  obtain  stay  of  proceedings,  3757. 
order  for  stay,  3760. 
undertaking  to  obtain  stay,  3760. 
notice  of  filing  undertaking,  3765. 
notice  of  exception  to  sureties,  3768. 
notice  of  justification  of  sureties,  3768. 
allowance  of  sureties,  3769. 
notice  of  allowance  of  sureties,  3769. 
order  for  new  undertaking,  3770. 
notice  before  suit  on  undertaking,  3777. 
complaint  in  action  on  undertaking,  3778. 
notice  of  argument,  3816. 
order  for  judgment,  3923,  3930. 
judgment  of  affirmance,  3924,  3930. 
order  on  reversal,  3931. 
judgment  of  reversal,  3931. 

APPEARANCE, 

general  appearance,  809. 
special  appearance,  813. 

ARREST, 

affidavits,  1323. 
order,  1333. 

undertaking  on  procuring,  1331. 
warrant  in  supplementary  proceedings,  3310. 
affidavit  for,  3309. 


4014  INDEX  TO  FORMS. 

[references  are  to  pages.] 

ASSAULT  AND  BATTERY, 
form  of  complaint,  933. 

ASSIGNMENT, 

of  judgment,  2833.  2834. 
verification,  3177. 

ATTACHMENT   (see,  also,  "Levy,"  "Inventory"), 
affidavit,  1451. 
undertaking,  1456. 
warrant,  1462. 

notice  of  levy,  1465,  note,  1470. 
indemnity  to  sheriff,  1473. 
order  for  examination  in  aid  of,  1501. 
undertaking  to  obtain  discharge  of,  1508. 
notice  to  plaintiff  of  claim  to  property  attached,  1486. 
sheriff's  return  to  warrant,  1536. 
execution  against  attached  property,  1538. 
affidavit  on  motion  to  vacate,  1526. 

notice  of  motion,  1521. 

order,  1528. 

ATTORNEYS, 

verification  of  pleading  by  attorney,  899. 
consent  to,  and  order  of,  substitution,  277. 

B. 

BAIL, 

undertaking,  1358. 

BILL  OP  PARTICULARS, 

affidavit  for,  875. 
order  for,  877. 

BOND, 

of  receiver,  1637. 

of  guardian  ad  litem,  2048. 

of  receiver  in  supplementary  proceedings,  3356. 

c. 

CALENDAR, 

notice  of  motion,  affidavit,  and  order,  for  preference,  1685. 

CERTIFICATES, 

of  authority  to  take  affidavit  without  the  state,  559. 
sheriff's  certificate  of  service  of  summons,  785. 


INDEX  TO  FORMS.  4615 

[references  are  to  pages.] 

CERTIFICATES— Cont'd. 

i 

of  execution  of  deposition  outside  state,  1760. 

of  attorney  on  seeking  leave  to  sue  as  a  poor  person,  1877. 

certified  copy  of  warrant  of  attachment,  1470. 

demand  for  certificate  from  third  person  on  levying  attachment, 

1470. 
of  satisfaction  of  judgment  on  redeeming  from  execution  sale,  3172. 

CHANGE  OF  PLACE  OF  TRIAL, 
demand,  1941. 

consent,  1944. 
affidavits,  1953,  1958. 
order,  1961, 

CITY  COURT  OF  NEW  YORK, 

form  of  summons,   <19. 

COMMISSION, 

to  take  deposition  outside  state,  1745. 

COMPLAINT, 

for  assault  and  battery,  932. 

for  work,  labor  and  materials  furnished,  932. 

for  goods  sold  and  delivered,  932. 

on  bill  of  exchange,  932. 

on  promissory  note,  930,  931. 

affidavit  of  service  of  complaint,  667. 

order  extending  time  to  serve  complaint,  693. 

forms  of  demurrers  to  complaint,  1008. 

CONFESSION  OF  JUDGMENT, 

statement,  2886. 

verification,  2887. 
judgment,  2888. 

CONSENT, 

to  substitution  of  attorneys,  277. 
to  demand  for  change  of  place  of  trial,  1944. 
of  attorney  to  act  as  such  for  poor  person,  1879. 
to  reference,  2554. 

CONSOLIDATION  OF  ACTIONS, 

affidavit  to  obtain,  1698. 
notice  of  motion  for,  1698. 
order,  1700. 


|,;k;  INDEX  TO  FORMS. 

[references  are  to  pages.] 
COPY  OF  ACCOUNT, 

demand  for,  858. 
form  of,  859. 

CORPORATIONS, 

verification  of  pleading  by  officer  of  domestic  corporation,  899. 

COSTS, 

notice  of  taxation,  3027. 

order  for  additional  allowance,  3025. 

affidavit  of  disbursements,  3030. 

certificate  for,  3032. 

order  awarding  in  supplementary  proceedings,  3342,  3343. 

COUNTERCLAIMS, 

demurrers  to  counterclaims,  1009. 

D. 

DECISIONS, 

decision  sustaining  demurrer,  1018. 
decision  overruling  demurrer,  1018. 
on  trial  by  court  without  a  jury,  2382. 
notice  of  exceptions  to,  2389. 
judgment  on,  2773. 

DEFAULT   JUDGMENT, 

affidavit  of  no  answer,  2854. 

judgment  roll,  2854. 

notice  of  application  for,  2857. 

demand  of  notice  of  assessment  of  damages,  2863. 

writ  of  inquiry,  2864. 

inquisition,  2865. 

DEFENSES   (see,  also,  "Answer"), 
demurrers  to  defenses,  1009. 

DEMAND, 

for  change  of  place  of  trial,  1941. 

levying  on  property  incapable  of  manual  delivery,  1470. 

of  notice  of  assessment  of  damages  on  judgment  by  default,  2863. 

DEMURRERS, 

to  complaint,  1008. 
to  defense,  1010. 
to  counterclaims,  1009. 
to  reply,  1010. 


INDEX  TO  FORMS.  4617 

[references  are  to  pages.] 

DEMURRERS— Cont'd. 

decision  sustaining  demurrer,  1018. 

decision  overruling  demurrer,  1018. 

interlocutory  judgment  on  ruling  on  demurrer,  1019. 

judgment  on,  2777. 

report  of  referee  on  hearing  of,  2622. 

DEPOSITION   (see,  also,  "Examination  of  Party  before  Trial"), 
order  to  take  deposition  for  purpose  of  motion,   581. 
affidavit  on  motion  to  compel  making  of  deposition  for  purpose  of 

motion,  580. 
affidavit  to  perpetuate  testimony,  1725. 
affidavit  for  commission  to  take  deposition  without  the  state,  1737. 

order,  1739. 

interrogatories,  1743. 

commission,  1745. 
affidavit  for  open  commission  to  take  deposition  outside  state,  1752. 
taken   without  state,   1757. 
certificate  of  execution  without  state,  1760. 

DISCOVERY  AND  INSPECTION, 
petition,  1849. 
order,  1858. 

DISBURSEMENTS, 
affidavit  of,  3030. 

E. 

ENTRY, 

notice  of  entry  of  judgment,  2786. 

ESTOPPEL, 

pleading,  966. 

EXAMINATION  OF  PARTY  BEFORE  TRIAL, 

affidavits,  1792,  1795. 
order,  1805. 
deposition,  1813. 

EXCEPTIONS, 

to  decision  of  court,  2389. 
to  report  of  referee,  2638. 

EXECUTION  AGAINST  PROPERTY, 
against  attached  property,  1538. 
affidavit  to  obtain  leave  to  issue  after  five  years,  3072. 


|(;[S  INDEX  TO  FORMS. 

[REFERENCES    ARE    TO    PAGES.] 

EXECUTION  AGAINST   PROPERTY— Cont'd. 

order  granting  leave  to  issue  after  five  years,  3072. 

affidavit  to  issue  after  death  of  judgment  debtor,  3078. 

order  granting  leave  to  issue  after  death  of  debtor,  3079. 

writ  of  execution,  3099. 

affidavit,  order,  and  execution  against  wages,  etc.,  3111. 

affidavit  of  claim  of  third  person,  3124. 

undertaking  as  indemnity  against  claim  of  third  person,  3125. 

certificate  of  satisfaction  of  judgment  on  redeeming,  3172. 

affidavit  of  amount  due  on  judgment,  3178. 

EXECUTION  AGAINST  THE  PERSON, 
writ,  3206. 

F. 

FILING, 

affidavit  of  filing  of  papers  where  summons  is  published,  776. 

FOREIGN  CORPORATIONS, 

verification  of  pleading  by  attorney  or  agent,  900. 

FORMER  ADJUDICATION, 

pleading,  966. 

G. 

GARNISHMENT, 

affidavit,  order,  and  execution,  3111,  3112. 

GUARDIAN  AD   LITEM, 

affidavit  of  proposed  guardian  ad  litem  for  plaintiff,  91. 
petition  for  appointment  of  guardian  ad  litem  for  plaintiff,  90. 
petition  for  appointment  for  defendant,  2045. 
bond  of,  2048. 

H. 

HABEAS  CORPUS, 

affidavit  to  bring  up  prisoner  to  testify,  1987. 
writ,  1988. 

I. 
IMPRISONMENT, 

affidavit  to  bring  up  prisoner  to  testify,  1987. 
writ,  1988. 


INDEX  TO  FORMS.  4619 

[references  are  to  pages.] 

INDEMNITY. 

bond  given  to  sheriff  by  attachment  creditor,  1473. 

notice  by  sheriff  to  attachment  creditor  requiring  indemnity  for 

levy,  1473. 
undertaking  on  levy  on  property,  3125. 

INDORSEMENTS, 

on  summons  in  penal  actions,  724. 

INFANTS, 

answer  alleging  infancy  of  plaintiff,  965. 

INJUNCTION  (temporary), 
notice  of  application,  1573. 
undertaking,  1582. 
order,  1585. 

INQUISITION, 

on  assessment  of  damages  by  default,  2865. 

INSPECTION, 

petition,  1849. 
order,  1858. 

INTERPLEADER, 

affidavit,  1868. 
order,  1870. 

INTERROGATORIES, 

deposition  outside  state,  1743. 

INVENTORY, 

levying  attachment,  1475. 

J. 

JUDGMENTS, 

form  of  interlocutory  judgment  on  ruling  on  demurrer,  1019. 

on  general  verdict,  2758. 

on  decision,  2773. 

on  report  of  referee,  2774. 

on  demurrer,  2777. 

notice  of  entry,  2786. 

transcript  of  docket,  2794. 

order  releasing  real  property  from  lien  pending  appeal,  2805. 

satisfaction  piece,  2839. 

assignment  of,  2833,  2834. 


4620  INDEX  TO  FORMS. 

[references  are  to  pages.] 

JUDGMENTS— Cont'd. 

certificate  of  satisfaction  on  redeeming  from  execution  sale,  3172. 
verification  of  assignment  of,  3177. 
affidavit  of  amount  due  on,  3178. 

JUDGMENT  ROLL, 

default  judgment,  2854. 

JUDICIAL  SALES, 

memorandum  of  sale,  3225. 

JURAT, 

of  affidavit  taken  without  the  state,  556. 

L. 

LEAVE  TO  SUE  AS  A  POOR  PERSON, 

petition,  1876. 
order,  1879. 

LEVY, 

notice  of  levy  on  real  estate,  1465,  note. 

on  personal  property  incapable  of  manual  delivery,  1470. 
indemnity  to  sheriff,  1473. 
inventory,  1475. 
affidavit  and  order  to  obtain  order  of  sale  of  property  attached,  1479. 

M. 

MEMORANDUM, 

of  judicial  sale,  3225. 

N". 

NEGOTIABLE  INSTRUMENTS, 
form  of  complaint,  930-932. 

NEW  TRIAL, 

order  for  hearing  of  exceptions  by  appellate  division,  2724. 

order  denying  motion  on  judge's  minutes,  2741. 

special  term  order,  2742. 

appellate  division  order  denying  exceptions,  2742. 

NONSUIT, 

note  of  issue,  1669. 

report  of  referee  on  motion  for,  2462. 


INDEX  TO  FORMS.  4021 

[references  are  to  pages.] 

NOTICE, 

served  with  summons,  729. 

of  no  personal  claim,  served  with  summons,  730. 
of  exceptions  to  decision  of  court  or  report  of  referee,  2389. 
of  levy  on  real  estate,  1465,  note. 

of  levy  on  personal  property  incapable  of  manual  delivery,  1470. 
of  application  for  temporary  injunction,  1573. 
to  produce  documents  on  trial,  1967. 

by  sheriff  to  creditor  of  claim  to  attached  property,  1486. 
that  evidence  will  be  produced,  an  admission  of  its  genuineness  be- 
ing sought,  1975. 
of  entry  of  judgment,  2786. 

time  and  place  of  hearing  before  referee,  2590. 
of  taxation  of  costs,  3027. 

NOTICE  OF  MOTION, 

form  of  notice,  587. 

for  preference  on  calendar,  1685. 

for  consolidation  of  actions,  1698. 

to  vacate  attachment,  1521. 

to  appoint  receiver  in  supplementary  proceedings,  3349. 

application  to  court  for  judgment  by  default,  2857. 

NOTICE  OF  TRIAL, 

before  court  or  jury,  1668. 
before  referee,  2590. 

o. 

OATHS, 

of  referee,  565,  2589. 

in  supplementary  proceedings,  3315. 

OFFER, 

to  allow  judgment  before  trial,  1996. 

affidavit  of  attorney's  authority  to  make,  1994. 
to  liquidate  damages,  2003. 

ORDER, 

judge's  order,  623. 

special  term  order,  622. 

for  bill  of  particulars,  877. 

for  service  of  summons  by  publication,  773. 

to  take  deposition  for  purpose  of  motion,  581. 

granting  extension  of  time  to  answer,  941. 

extending  time  to  serve  complaint,  693. 


4622  INDEX  TO  FORMS. 

[references  are  to  pages.] 

ORDER— Cont'd. 

granting  leave  to  amend  pleadings,  1046. 

sustaining  demurrer,  1018. 

overruling  demurrer,  1018. 

substitution  of  attorneys,  277. 

affidavit  of  service  of  judge's  order,  667. 

arrest,  1333. 

change  of  place  of  trial,  1961. 

commission  to  take  deposition  without  the  state,  1739. 

consoliating  actions,  1700. 

severing  action,  1709. 

examination  of  party  before  trial,  1805. 

examination  of  third  person  in  aid  of  attachment,  1501. 

inspection  and  discovery  of  papers,  1858. 

interpleader,  1870. 

leave  to  sue  as  a  poor  person,  1879. 

judgment  for  sum  admitted  by  answer  to  be  due,  1706. 

postponing  trial,  2032. 

perferring  case  on  calendar,  1685. 

produce  papers  on  trial,  1971. 

security  for  costs,  1902. 

temporary  injunction,  1585. 

of  sale  of  attached  property,  1479. 

for  examination  of  third  person  in  aid  of  attachment,  1501. 

discharging  attachment,  1510. 

vacating  attachment,  1528. 

reference  by  consent,  2555. 

compulsory  reference,  2579. 

directing  exceptions  to  be  heard  by  appellate  division,  2724. 

denying  exceptions  heard  by  appellate  division,  2742. 

special  term  order  granting  new  trial,  2742. 

denying  motion  for  new  trial  on  judge's  minutes,  2741. 

for  judgment  on  issue  of  law,  2777. 

releasing  real  property  from  lien  pending  appeal,  2805. 

additional  allowance  of  costs,  3025. 

leave  to  issue  execution, 

after  five  years,  3072. 

after  death  of  judgment  debtor,  3078. 

against  wages,  income  of  trust,  etc.,  3111. 
to  appear  for  examination,  in  supplementary  proceedings,  3293. 
permitting   payment  by   third   person,    in    supplementary    proceed- 
ings, 3327. 
requiring  payment  or  delivery,  in  supplementary  proceedings,  3330. 
awarding  costs  to  creditor  in  supplementary  proceedings,  3342. 


INDEX  TO  FORMS.  4623 

[references  are  to  pages.] 

ORDER— Cont'd. 

awarding  costs  to  debtor  or  third  person,  in  supplementary  pro- 
ceedings, 3343. 
appointing  receiver  in  supplementary  proceedings,  3354. 
extending  receivership  in  supplementary  proceedings,  3357. 
substituting  party  on  appeal,  3675. 
where  party  not  substituted  on  appeal,  3678. 

ORDER  TO  SHOW  CAUSE, 
form  of  order,  593. 
discovery  and  inspection,  1858. 
where  parties  not  substituted  on  appeal,  3678. 

P. 

PAPERS, 

affidavit  of  service  of  papers,  667,  668. 
notice  to  produce  on  trial,  1967. 
order  to  produce,  1971. 

PARTIES, 

answer  alleging  defect  of  parties,  965. 

PAYMENT, 

pleading,  966. 

PETITION, 

for  appointment  of  guardian  ad  litem  for  plaintiff,  90. 
for  discovery  and  inspection,  1849. 
for  leave  to  sue  as  a  poor  person,  1876. 
for  guardian  ad  litem  for  defendant,  2045. 

PHYSICAL  EXAMINATION, 
affidavit  on  motion  for,  1820. 

PLEADINGS    (see    "Complaint,"    "Answer,"    "Reply,"    "Amendments," 
"Verification,"  etc.). 

POSTPONEMENT, 

affidavit,  2029. 
order,  2032. 

PUBLICATION, 

affidavit  to  obtain  order  for  publication  of  summons,  769. 
affidavit  of  publication  of  summons,  791. 
order  for  publication  of  summons,  773. 
affidavit  of  mailing  of  summons,  791. 


4024  INDEX  TO  FORMS. 

[references  are  to  pages.] 
K. 

RECEIVERS, 

bond,  1637. 

in  supplementary  proceedings, 

notice  of  motion  to  appoint,  3349. 

order  appointing,  3354. 

bond,  3356. 

order  extending  receivership,  3357. 

REFEREES, 
oath  of,  565. 

REFERENCE, 

consent  to,  2554. 

order,  2555. 
affidavit  to  obtain,  2575,  2576. 
order,  2579. 
oath  of  referee,  2589. 

notice  of  time  and  place  of  hearing,  2590. 
notice  of  trial,  2590. 
subpoena,  2590. 

report  of  referee,  2620,  2621,  2622,  2624. 
exceptions  to  report,  2638. 

REPLY, 

form  of,  992. 
demurrer  to  reply,  1010. 

REPORT, 

of  referee,  2620. 

on  motion  for  nonsuit,  2621. 

on  hearing  of  demurrer,  2622. 

on  interlocutory  reference,  2624. 

to  take  and  state  an  account,  2624. 

in  supplementary  proceedings,  3318. 
judgment  on,  2774. 

RETURN, 

to  warrant  of  attachment,  1536. 

s. 

SALES, 

form  of  complaint  for  goods  sold  and  delivered,  932. 

affidavit  and  order  to  obtain  order  of  sale  of  property  attached,  1479. 


INDEX  TO  FORMS.  4625 

[references  are  to  pages.] 
SATISFACTION  PIECE, 

on  satisfaction  of  judgment,  2839. 

SECURITY  FOR  COSTS, 

affidavit,  1900. 
order,  1902. 
undertaking,  1903. 

SEVERANCE     OF  ACTION, 
order,  1706,  1709. 

SHERIFFS, 

certificate  of  service  of  summons,  785. 
notice  of  claim  to  property  attached,  1486. 
indemnity  bond  given  to,  1473. 

STATEMENT  OF  FACTS, 

where  controversy  is  submitted  on  admitted  facts,  35. 

STATUTE  OF  FRAUDS, 
pleading,  966. 

STATUTE  OF  LIMITATIONS, 
pleading,  966. 

STAY  OF  PROCEEDINGS, 
affidavit,  1921. 

STIPULATIONS, 

extending  time  to  answer,  938. 

SUBMISSION   OF  CONTROVERSY  ON  ADMITTED  FACTS, 

statement  of  facts,  35. 
affidavit,  36. 

SUBPOENA, 

to  testify,  1978. 

ticket,  1982. 

to  attend  before  a  referee,  2591. 

in  supplementary  proceedings,  3315. 

SUBPOENA  DUCES  TECUM, 

form,  1969. 

proof  of  service,  1970. 

N.  Y.  Prac— 290. 


4626  INDEX  TO  FORMS. 

[REFERENCES  are  to  pages.] 

SUMMONS, 

form  of,  721. 

indorsement  in  penal  actions,  724. 

notice  served  with  summons,  729. 

notice  of  no  personal  claim,  730. 

affidavit  to  obtain  substituted  service  of  summons,  753. 

affidavit  on  motion  to  set  aside  service  of  summons  on  corporate 

officer,  800. 
affidavit  of  service  of  summons,  667,  788. 
admission  of  service,  790. 

affidavit  of  substituted  service  of  summons,  792. 
affidavit  of  publication  and  mailing,  791. 

SUPPLEMENTAL  PLEADINGS, 
supplemental  answer,  1061. 

SUPPLEMENTARY  PROCEEDINGS, 

affidavit  to  procure  examination,  3284. 

before  return,  3285. 
for  examination  of  third  person,  3287. 
for.  second  examination,  3288. 
order  to  appear  for  examination,  3292. 

third  person  order,  3294. 
proof  of  service  of  order  to  appear,  3296. 
affidavit  for  warrant  of  arrest,  3309. 
warrant  of  arrest,  3310. 

undertaking  to  escape  imprisonment,  3311. 
oath  of  referee,  3315. 
subpoena,  3315. 
report  of  referee,  3318. 
affidavit  to  obtain  order  permitting  third  person  to  pay  sheriff,  3326. 

order,  3327. 
order  requiring  payment  or  delivery,  3330. 
order  awarding  costs  to  judgment  creditor,  3342. 
order  awarding  costs  to  debtor  or  third  person,  3343. 
notice  of  motion  to  appoint  receiver,  3349. 
order  appointing  receiver,  3354. 
receiver's  bond,  3356. 
order  extending  receivership,  3357. 

T. 

TENDER, 

pleading,  967. 


INDEX  TO  FORMS.  4627 

[references  are  to  pages.] 


TITLE, 

of  complaint,  918. 

TRANSCRIPT, 

of  docket  of  judgment,  2794. 

TRIAL, 

decision  of  judge  on  trial  without  a  jury,  2382. 


u. 

UNDERTAKING, 

form  of,  677. 

attachment,  1456. 

bail  bond,  1358. 

to  obtain  arrest,  1331. 

on  application  for  temporary  injunction,  1582. 

security  for  costs,  1903. 

to  obtain  discharge  of  property  from  attachment,  1508. 

order  of  discharge,  1510. 
indemnity  against  claim  of  third  person  to  property  levied  on,  3125. 
after  arrest  on  body  execution,  3311. 


V. 

VERDICT, 

judgment  on  general  verdict,  2758. 

VERIFICATION, 

of  pleadings,  898-900. 

of  copy  of  account,  860. 

of  petition  for  leave  to  sue  as  a  poor  person,  1877. 

of  assignment  of  judgment,  3177. 

of  statement  confessing  judgment,  2887. 


WARRANTS, 

attachment,  1462. 

attachment  for  witness,  19S1. 

return  to  warrant  of  attachment,  1536. 

arrest  in  supplementary  proceedings,  3310. 


INDEX  TO  FORMS. 

[REFERENCES  are  to  pages.] 

WITNESSES, 

subpoena,  1978. 

attachment  for  disobedience,  1981. 
subpoena  ticket,  1982. 

WRIT, 

habeas  corpus  to  bring  up  prisoner  to  testify,  1988. 

WRIT  OF  INQUIRY, 

to  assess  damages  on  judgment  by  default,  2864. 

WORK  AND  LABOR, 
complaint,  932. 


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